- Volume 331
- Mónica Pinto, L’emploi de la force dans la jurisprudence des tribunaux internationaux
- Edith Brown Weiss, The Evolution of International Water Law
- Volume 334
- J. Verhoeven
Saturday, July 11, 2009
Friday, July 10, 2009
- Stephen S. Schwebel, Keynote Address: The Provenance and Performance of Investment Treaty Arbitration
- Addy Paola Velazquez, Arbitrators and Issue Conflict: Treading a Tightrope of Legitimacy? A Civil Law Perspective
- Martha L. Harrison, Issue Conflict in International Arbitration: Much Ado about Nothing?
- Addy Paola Velazquez, Martha L. Harrison, Alexandre de Gramont, Mark E. Feldman, C. Mark Baker, Jean Kalicki, & James Lloyd Loftis, Panel Discussion: Arbitrators and Issue Conflict: Treading a Tightrope of Legitimacy?
- J. Tejera Pérez, Do Municipal Investment Laws Always Constitute a Unilateral Offer to Arbitrate? The Venezuelan Investment Law: A Case StudyVictorino
- Victorino J. Tejera Pérez, Marco E. Schnabl, Michael D. Nolan, Margrete Stevens, Mark Kantor, & Perry S. Bechky, Panel Discussion: Do Municipal Investment Laws Always Constitute a Unilateral Offer to Arbitrate?
- Frédéric Gilles Sourgens, A Comparative Analysis of Systemic Change at ICSID
- Dmitri Evseev, Living With Indeterminacy: A Practical Approach To ICSID Annulment Reasoning
- Drédéric Gilles Sourgens, Dmitri Evseev, Christopher F. Dugan, Oscar M. Garibaldi, Stanimir Alexandrov, & Stephen Jagusch, Panel Discussion: Annulment and Judicial Review - How "Final" Is an Award?
- Isabel Fernández de la Cuesta González, Fair and Equitable Treatment: Evolution or Revolution?
- Christophe Douaire de Bondy, Fair and Equitable Treatment, Arbitral Jurisprudence and the Implications of State Treaty Practice
- Isabel Fernández de la Cuesta González, Christophe Douaire de Bonds, Susan D. Franck, Alejandro A. Escobar, Abby Cohen Smutny, Nigel Blackaby, & René Cadieux, Panel Discussion: Fair and Equitable Treatment: Evolution or Revolution?
- Jackson Maogoto, Early efforts to establish an International Criminal Court
- Hisakazu Fugita, The Tokyo Trial Revisited
- Jackson Maogoto, The Work of National Military Tribunals under Control Council Law 10
- Jackson Maogoto, The Experience of the Ad hoc Tribunals
- William Schabas, Customary Law or "Judge-Made" Law: Judicial Creativity at the UN Criminal Tribunals
- Frits Kalshoven, Bombardment: From "Brussels 1874" to "Sarajevo 2003"
- Jose Doria, The relationship between complicity modes of liability and crimes requiring specific intent
- Mark Harmon, Plea-Bargaining: the uninvited guest at the International Criminal Tribunal for the Former Yugoslavia
- Fergal Gaynor, Provisional release in the law of the International Criminal Tribunal for the Former Yugoslavia
- Almiro Rodrigues, Undue delay and the ICTY’s Experience of Status Conferences: A Judge’s personal annotations
- Jose Doria, The Work of the Special Court for Sierra Leone through its jurisprudence
- Richard Burchill, From East Timor to Timor–Leste: A Demonstration of the Limits of International Law in the Pursuit of Justice
- Avril McDonald, Bosnia’s War Crimes Chambers and the Challenges of an Opening and Closure
- Hirad Abtai, The Judges of the International Criminal Court and the organization of their work
- Jan Wouters, Sten Verhoeven, & Bruno Demeyere, The International Criminal Court’s Office of the Prosecutor: Navigating between Independence and Accountability?
- Jose Doria & Anna Doria, The support work of the Court’s Registry
- W. Czaplinski, Jus Cogens, obligations Erga omnes and international Criminal Responsibility
- Christopher L. Blakesley, Jurisdction ratione personae or the Personal reach of the Court's jurisdiction
- Nigel White & Robert Cryer, The ICC and the Security Council: An uncomfortable relationship
- Lindsay Moir, Conduct of hostilities war crimes in international armed conflicts
- Judith Gardam, Crimes involving disproportionate means and methods of warfare under the Statute of the International Criminal Court
- Sergei Egorov, International legal protection for persons hors de combat
- Matthew Happold, Child recruitment as a crime under the ICC’s Statute
- Lindsay Moir, Particular issues regarding war crimes in internal armed conflicts
- Lindsay Moir, Violations of Common Article 3 of the Geneva Conventions
- Lindsay Moir, Displacement of Civilians as a war crime other than violation of Common Article 3 in internal Armed Conflicts
- Jose Doria, Whether crimes against humanity are backdoor war crimes
- Roger S. Clark, The crime of aggression
- Charles Garraway, The Doctrine of Command responsibility
- Geert-Jan Alexander Knoops, The transposition of military commander’s discretion onto International Criminal Responsibility for Military Commanders: An increasing legal-political Dilemma within International criminal Justice
- Eric David, Official capacity and immunity of an accused before the International Criminal Court
- Eric David, Self-defence and state of necessity in the Statute of the ICC
- Geert-Jan Alexander Knoops, The diverging position of criminal law defences before the ICTY and the ICC: contemporary developments
- Silvia Fernandez de Gurmendi & Hakan Friman, The Rules of Procedure and Evidence and the Regulations of the Court
- Vladimir Tochilovsky, Charging in the ICC and relevant jurisprudence of the ad hoc Tribunals
- Vladimir Tochilovsky, Prosecution Disclosure obligations in the ICC and relevant jurisprudence of the ad hoc Tribunals
- Josee d’Aoust, The Conduct of Trials
- Theo van Boven, Victims’ rights and interests in the International Criminal Court
- Ilaria Bottigliero, Ensuring effective participation and adequate redress for victims: challenges ahead for the ICC
- Eric Myjer, Uniform Justice and the death penalty
- Jose Doria, Standards of Appeals and Standards of Revision
- Daniel N’Sereko, Cooperation with the Court on matters of Arrest and surrender of Indicted Fugitives: Lessons from the ad hoc Tribunals and national jurisdictions
- Shabtai Rosenne, The International Criminal Court and the International Court of Justice
- Robert Kolb, International Humanitarian Law and its Implementation by the Court
- Ruth Wedgwood, The International Criminal Court: reviewing the case (An American point of view)
- Yves Sandoz, The dynamic but complex relationship between international Penal Law and International humanitarian law
- Lyal S. Sunga, Ten principles for reconciling truth commissions and criminal prosecutions
- Aslan Abashidze & Elena Trikoz, ICC Statute and the ratification saga in the States of the Community of Independent States
- Hans-Peter Gasser, The Changing relationship between International Criminal Law, Human rights law and International humanitarian Law
Thursday, July 9, 2009
The Routledge Handbook of International Law provides a definitive global survey of the interaction of international politics and international law. Each chapter is written by a leading expert and provides a state of the art overview of the most significant areas within the field.
This highly topical collection of specially commissioned papers from both established authorities and rising stars is split into four key sections: The Nature of International Law including the interaction between the disciplines of International Law and International Relations; The Evolution of International Law progressing from the ancient world to present day; Law and Power in International Society discussing topical issues such as the war in Iraq and the international criminal court; Key Issues in International Law including international refugee law, indigenous rights, intellectual property, trade and the challenges presented by "new terrorism".
A comprehensive survey of the state of the discipline, The Routledge Handbook of International Law is an essential work of reference for scholars and practitioners of international Law.
A novel strain of Influenza A (H1N1) spread rapidly through Mexico in April 2009 and now spans the globe. By the time WHO was notified and responded, geographical containment was not feasible, leading the agency to call for mitigation. The international outbreak of SARS in 2003 and the more recent Influenza A (H5N1) among birds with limited transmission to humans helped prepare the world for the current pandemic threat. SARS galvanized the WHO to revise the antiquated International Health Regulations (IHR) in 2005, which took effect June 15, 2007. Governments instituted preparedness plans in response to avian influenza. Despite increased preparedness, the WHO and US Centers for Disease Control and Prevention (CDC) lack key powers and resources. Reminiscent of past responses, many governments are acting out of fear or economic and political self-interest rather than scientific reason. Above all, there are serious questions of global justice, as Mexicans are subject to stigma and discrimination. This article by Lawrence O. Gostin, O’Neill Professor of Global Health Law at Georgetown University, analyses WHO powers and resources including the pandemic alert system and the IHR, as well as the powers and resources of the CDC. He finds that although the response to H1N1 has been strong, the WHO and CDC need more authority and resources to deal with pandemic threats under the rule of international law.
- Ian Brownlie, The Peaceful Settlement of International Disputes
- Agora: Kosovo (Part 2)
- Alexander Orakhelashvili, The Kosovo UDI between Agreed Law and Subjective Perception: A Response to Hilpold
- Peter Hilpold, What Role for Academic Writers in Interpreting International Law? - A Rejoinder to Orakhelashvili
- Xue Hanqin & Jin Qian, International Treaties in the Chinese Domestic Legal System
- Zou Keyuan, New Developments in the International Law of Piracy
- Yvenson St-Fleur, Aerial Belligerency within a Humanitarian Rhetoric: Exploring the Theorizing of the Law of War/Terrorizing of Civilians' Rights Nexus
- Tare C. Brisibe, Customary International Law, Arms Control and the Environment in Outer Space
- Tse Ka Ho, The Relevancy of Nationality to the Right to Prisoner of War Status
- Yu Shuhong, Xiao Yongping, & Wang Baoshi, The Closest Connection Doctrine in the Conflict of Laws in China
- Symposium: Protection of Sexual Minorities Since Stonewall: Progress and Stalemate in Developed and Developing Countries
- Desmond M. Tutu, Foreword
- Frank Barnaby, Preface
- Phil C. W. Chan, Protection of sexual minorities since Stonewall: their lives, struggles, sufferings, love, and hope
- Phil C. W. Chan, Psychosocial implications of homophobic bullying in schools: a review and directions for legal research and the legal process
- Matthew T. Mercier, Fighting to fit in: gay–straight alliances in schools under United States jurisprudence
- Eric Heinze, Cumulative jurisprudence and human rights: the example of sexual minorities and hate speech
- Kay Goodall, Challenging hate speech: incitement to hatred on grounds of sexual orientation in England, Wales and Northern Ireland
- Philip N. S. Rumney, Gay male rape victims: law enforcement, social attitudes and barriers to recognition
- Alana Klein, Criminal law, public health, and governance of HIV exposure and transmission
- Phil C. W. Chan, Shared values of Singapore: sexual minority rights as Singaporean value
- Phil C. W. Chan, Keeping up with (which) Joneses: a critique of constitutional comparativism in Hong Kong and its implications for rights development
- Mark McLelland & Katsuhiko Suganuma, Sexual minorities and human rights in Japan: an historical perspective
- Oliver Phillips, Blackmail in Zimbabwe: troubling narratives of sexuality and human rights
- Sam Winter, Lost in transition: transpeople, transprejudice and pathology in Asia
- Jenni Millbank, From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom
- Sean Rehaag, Bisexuals need not apply: a comparative appraisal of refugee law and policy in Canada, the United States, and Australia
- Nicole LaViolette, Independent human rights documentation and sexual minorities: an ongoing challenge for the Canadian refugee determination process
- Aisling O'Sullivan, Same-sex marriage and the Irish Constitution
- Cesare P.R. Romano, Foreword
- Chester Brown, The Cross-Fertilization of Principles Relating to Procedure and Remedies in the Jurisprudence of International Courts and Tribunals
- Mónica Pinto, National and International Courts—Deference or Disdain?
- Nikolaos Lavranos, The Solange-Method as a Tool for Regulating Competing Jurisdictions Among International Courts and Tribunals
- Jessica Almqvist, Complementarity and Human Rights: A Litmus Test for the International Criminal Court
- Ernst-Ulrich Petersmann, Multilevel Judicial Governance as Guardian of the Constitutional Unity of International Economic Law
- Daniel Terris, Cesare P.R. Romano, & Leigh Swigart, Toward a Community of International Judges
- Yuval Shany, Squaring the Circle? Independence and Impartiality of Party- Appointed Adjudicators in International Legal Proceedings
Wednesday, July 8, 2009
- Jorge E. Viñuales, La Protección del Medio Ambiente y su Jerarquía Normativa en Derecho Internacional
- Andre Pinto Basto Lipp Lupi, Quel est l'état du droit coutumier en matière de succession
- Katia Castaldo & Flor María Ávila Hernández, Comunicazione Giuridica e Apprendimento Legislativo
- Julio César Daza Hernández, The services related to the electric industry under the gats: is there a need for new provisions At the multilateral level for these services?
- Miguel Castro Riberos & Carolina Deik Acosta-Madiedo, Salud Pública, Patentes de Productos Farmacéuticos y Licencias Obligatorias en el Acuerdo sobre los ADPIC: una mirada desde el tercer mundo
- Alma Clara García Flechas, El sistema general de riesgos profesionales vigente en Colombia-Una visión interna y desde la decisión 584, instrumento andino de seguridad y salud en el trabajo
- Juan David Barbosa Mariño & María Clara Lozano Ortiz de Zárate, ¿Cómo leer el Tratado de Libre Comercio Colombia -Estados Unidos de América?: Resultados Preliminares de la Línea de Investigación Tratado de Libre Comercio Colombia - Estados Unidos
- Mariana Bernal-Fandiño, El deber de coherencia en los contratos y la regla del venire contra Factum Proprium
- Juana Inés Acosta López & Diana Bravo Rubio, El cumplimiento de los fines de reparación integral de las medidas ordenadas por la corte interamericana de derechos humanos: énfasis en la experiencia colombiana
- Juan Manuel Valcárcel Torres, Beligerancia, terrorismo y conflicto armado: no es un juego de palabras
- Lina Marcela Escobar Martínez, El uso del precedente extranjero por parte de la Corte Constitucional colombiana
- International Court of Justice: Decision on the Request for Interpretation in Avena, with introductory note by Chiara Giorgetti
- Siemens AG — Violations of the Foreign Corrupt Practices Act, with introductory note by Alexandra Wrage and Anne Richardson
- Special Agreement Between Belize and Guatemala, with introductory note by John R. Crook
- Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, with introductory note by Tara J. Melish
- International Court of Justice: Croatia v. Serbia, with introductory note by Jamey Harris
- The European Court of Human Rights: S. & Marper v. U.K., with introductory note by Gerald S. Schatz
- Protocol on the Statute of the African Court of Justice and Human Rights, with introductory note by Olufemi Elias
- Convention on Cluster Munitions, with introductory note by Louis Maresca
- U.S. Directive on Arctic Policy and the Ilulissat Declaration, with introductory note by Evan T. Bloom
- European Court of Justice: Klaus Bourquain, with introductory note by Gerardo Badillo Hermoso
- President Obama’s Executive Orders on Guantánamo Bay, Interrogation and Detention, with introductory note by John Radsan
- International Criminal Court: Summary of the Prosecutor’s Application under Article 58, with introductory note by Milena Sterio
- Group of Twenty & Group of Thirty, with introductory note by Kathleen A. Scott
- Anne-Sylvie Courdier-Cuisinier, La cession conventionnelle de contrat en matière internationale
- Marie Cornu & Marc-André Renold, Le renouveau des restitutions de biens culturels: les modes alternatifs de règlement des litiges
- Jacques Lemontey & Nicolas Michon, Les "class actions" américaines et leur éventuelle reconnaissance en France
- Christian Byk, Force normative et multiplicité des sources en droit international des science de la vie
- Helena H.C. Chen, The Practical Impact of Amendment to Article 85-1, Section 2 of the Government Procurement Act: A Report from Taiwan
- Ali Z. Marossi, The Necessity for Discovery of Evidence in the Fact-Finding Process of International Tribunals
- Moritz Renner, Towards a Hierarchy of Norms in Transnational Law?
- Arnoldo Wald & Jean Kalicki, The Settlement of Disputes between the Public Administration and Private Companies by Arbitration under Brazilian Law
- Jens Meierhenrich & Keiko Ko, How Do States Join the International Criminal Court?: The Implementation of the Rome Statute in Japan
- William W. Burke-White & Scott Kaplan, Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation
- Symposium: The Arrest Warrant against the President of Sudan: Reasoning and Implications of the ICC Decision
- Salvatore Zappalà, Foreword
- Robert Cryer, The Definitions of International Crimes in the Al Bashir Arrest Warrant Decision
- Claus Kreß, The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial Chamber's Decision in the Al Bashir Case
- Harmen G. van der Wilt, The Continuous Quest for Proper Modes of Criminal Responsibility
- Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest?
- Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir's Immunities
- Cecily Rose, Troubled Indictments at the Special Court for Sierra Leone: The Pleading of Joint Criminal Enterprise and Sex-based Crimes
- Róisín Mulgrew, On the Enforcement of Sentences Imposed by International Courts: Challenges Faced by the Special Court for Sierra Leone
Tuesday, July 7, 2009
- Anna Stilz, Why do states have territorial rights?
- Sergei Prozorov, Generic universalism in world politics: beyond international anarchy and the world state
- Stacie E. Goddard, Brokering change: networks and entrepreneurs in international politics
- Symposium on Andrew Guzman's How International Law Works
- Andrew T. Guzman, How international law works: introduction
- Andrew Kydd, Reputation and cooperation: Guzman on international law
- Alexander Thompson, The rational enforcement of international law: solving the sanctioners’ dilemma
- Rachel Brewster, The limits of reputation on compliance
- Andrew T. Guzman, How international law works: a response to commentators
- Cathal Doyle, Millennium Development Goals and human rights: in common cause or uneasy partners?
- Joshua Castellino, The MDGs and international human rights law: a view from the perspective of minorities and vulnerable groups
- Elvira Domnguez Redondo, The Millennium Development Goals and the human rights based approach: reflecting on structural chasms with the United Nations system
- Cathal Doyle, Indigenous peoples and the Millennium Development Goals - 'sacrificial lambs' or equal beneficiaries?
- Guido Schmidt-Traub, The Millennium Development Goals and human rights-based approaches: moving towards a shared approach
- Magdalena Seplveda Carmona, The obligations of 'international assistance and cooperation' under the International Covenant on Economic, Social and Cultural Rights. A possible entry point to a human rights based approach to Millennium Development Goal 8
Contemporary Issues in International Arbitration and Mediation - The Fordham Papers 2008 is the second annual volume of papers on international arbitration and mediation written by leading figures in the field who spoke at the 2008 Fordham Law School Conference on International Arbitration, held at Fordham in New York City on June 16-17, 2008. The 24 papers are organized into five parts that address investor-state arbitration, recent significant domestic judicial decisions involving or potentially involving international arbitration, class actions and consolidation in international arbitration, intellectual property and information technology issues, and mediation, including confidentiality, qualifications, M & A outcomes, the European Directive, and mediation in China. The papers focus on both practical considerations and scholarly analyses.
- Lars-Erik Cederman & Kristian Skrede Gleditsch, Introduction to Special Issue on "Disaggregating Civil War"
- Lars-Erik Cederman, Halvard Buhaug, & Jan Ketil Rod, Ethno-Nationalist Dyads and Civil War: A GIS-Based Analysis
- Nils B. Weidmann, Geography as Motivation and Opportunity: Group Concentration and Ethnic Conflict
- Halvard Buhaug, Scott Gates, & Paivi Lujala, Geography, Rebel Capability, and the Duration of Civil Conflict
- David E. Cunningham, Kristian Skrede Gleditsch, & Idean Salehyan, It Takes Two: A Dyadic Analysis of Civil War Duration and Outcome
- Havard Hegre, Gudrun Ostby, & Clionadh Raleigh, Poverty and Civil War Events: A Disaggregated Study of Liberia
- Kyle Beardsley & Brian McQuinn, Rebel Groups as Predatory Organizations: The Political Effects of the 2004 Tsunami in Indonesia and Sri Lanka
Monday, July 6, 2009
Confronting the evils of World War II and building on the legacy of the 1776 Declaration of Independence and the 1789 French Declaration of the Rights of Man and of the Citizen, a group of world citizens including Eleanor Roosevelt drafted the Universal Declaration of Human Rights. Adopted by the United Nations in 1948, the Universal Declaration has been translated into 300 languages and has become the basis for most other international human rights texts and norms. In spite of the global success of this document, however, a philosophical disconnect exists between what major theorists have said a human right is and the foundational text of the very movement they advocate.
In Inherent Human Rights: Philosophical Roots of the Universal Declaration, philosopher and political theorist Johannes Morsink offers an alternative to contemporary assumptions. A major historian of the Universal Declaration, Morsink traces the philosophical roots of the Declaration back to the Enlightenment and to a shared revulsion at the horrors of the Holocaust. He defends the Declaration's perspective that all people have human rights simply by virtue of being born into the human family and that human beings have these rights regardless of any government or court action (or inaction). Like mathematical principles, human rights are truly universal, not the products of a particular culture, economic scheme, or political system. Our understanding of their existence can be blocked only by madness and false ideologies. Morsink argues that the drafters of the Declaration shared this metaphysical view of human rights. By denying the inherence of human rights and their metaphysical nature, and removing the concepts of the Declaration from their historical and philosophical context, contemporary constructivist scholars and pragmatic activists create an unnecessary and potentially dangerous political fog. The book carefully dissects various human rights models and ends with a defense of the Declaration's cosmopolitan vision against charges of unrealistic utopianism and Western ethnocentrism.
Inherent Human Rights takes exception to the reigning view that the Golden Rule is the best defense of human rights. Instead, it calls for us to "follow the lead of the Declaration's drafters and liberate the idea of human rights from the realm of the political and the juridical, which is where contemporary theorists have imprisoned it."
With its Kadi-judgment, the European Court of Justice firmly rejected the Kadi/Yusuf-judgments of the Court of First Instance. The Court of Justice made unambiguously clear that Community law, in particular its basic, core fundamental rights values prevail over any international law obligations of the EC and its Member States, including UN Security Council Resolutions and the UN Charter. As a consequence thereof, individuals targeted by UN sanctions must have access to full judicial review in order to be able to ensure the eff ective protection of their fundamental rights, including procedural rights as guaranteed by the European Convention of Human Rights (ECHR). As a result, the Court of Justice proved that the Community is indeed based on the rule of law and that the fi ght against terrorism - how important it may be - cannot be used as a justifi cation for completely abrogating European constitutional law values as guaranteed within the Community and its Member States.
The essay addresses whether party preference for more intrusive court review of the facts and law of an aribitral award will (or should) be respected in national arbitration law. The recent U.S. Supreme Court decision in Hall Street rules that expanded review clauses are not enforceable under the Federal Arbitration Act. The essay argues, however, that expanded review of an international arbitral award should still be possible in the U.S. if the parties draft the arbitration clause carefully. For that purpose the parties should include an expanded review clause and should place the arbitral seat in a State that allows expanded review - for example, California. They should also expressly provide that the arbitration be governed by that State’s arbitration law. A respondent seeking to subject an unfavorable award to expanded review could then file for set-aside in the State courts of the seat. Even if the award creditor were to remove to federal court, the essay argues that a federal court should apply the State arbitration law, which, in the case of California, allows expanded review when the parties expressly provide for it. The essay also discusses the options for obtaining expanded review of an award under Swiss, Italian, Swedish, and English law.
The International Law of Investment Claims considers the distinct principles governing the prosecution of a claim in investment treaty arbitration. The principles are codified as 54 ‘rules’ of general application on the juridical foundations of investment treaty arbitration, the jurisdiction of the tribunal, the admissibility of claims and the laws applicable to different aspects of the investment dispute. The commentary to each proposed rule contains a critical analysis of the investment treaty jurisprudence and makes extensive reference to the decisions of other international courts and tribunals, as well as to the relevant experience of municipal legal orders. Solutions are elaborated in respect of the most intractable problems that have arisen in the cases, including: the effect of an exclusive jurisdiction clause in an investment agreement with the host state; reliance on the MFN clause in relation to jurisdictional provisions; and, the legitimate scope of derivative claims by shareholders.
International lawyers have often been interested in the link between their discipline and the foundational issues of jurisprudential method, but little that is systematic has been written on this subject. In this book, an attempt is made to fill this gap by focusing on issues of concept-formation in legal science in general with a view to their application to the specific concerns of international law.
In responding to these issues, the author argues that public international law seeks to establish and institutionalise a system of authoritative judgment whereby the conditions by which a community of states can co-exist and co-operate are ensured. A state, in turn, must be understood as ultimately deriving legitimacy from the pursuit of the human dignity of the community it governs, as well as the dignity of those human beings and states affected by its actions in international relations. This argument is in line with a long and now resurgent Kantian tradition in legal and political philosophy.
The book shows how this approach is reflected in accepted paradigm cases of international law, such as the United Nations Charter. It then explains how this approach can provide insights into the theoretical foundations of these accepted paradigms, including our understanding of the sources of international law, international legal personality and the design of global institutions.
- Thalia Anthony, Quantum of strategic litigation—quashing public participation
- Jonathon Hunyor, Is it time to re-think special measures under the Racial Discrimination Act? The case of the Northern Territory Intervention
- Marie Segrave, Human trafficking and human rights
- Katharine Gelber, Academic freedom and the 'intellectual diversity' movement in Australia
- Adam Stone, Accountability, victims and reconciliation in South Africa's Truth and Reconciliation Commission
- Karen O'Connell, The clean and proper body: genetics, stigma and disability discrimination laws
Sunday, July 5, 2009
Shaffer & Pollack: Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance
This article addresses the interaction of hard and soft law in a fragmented international law system. This issue is increasingly important in a world where functional international regimes proliferate to address globalization and national interdependence without any overarching legal hierarchy. The article makes three core claims in contradistinction to the existing literature. The first and primary claim is that international hard and soft law instruments can serve not only as alternatives or complements, but also as antagonists in many situations. The second, related claim is that this interaction has particular implications in a fragmented international law system, affecting the very nature of international hard and soft law regimes and their purported advantages. The interaction of hard and soft law regimes can lead to the hardening of soft law regimes, resulting in more strategic bargaining and reducing their purported advantages of consensus-building through information-sharing and persuasion; and it can lead to the softening of hard law regimes, resulting in reduced legal certainty and predictability, especially where there is distributive conflict between powerful states. The third and final claim is that the interaction of hard and soft law is not a binary either/or question, but one of specifying the conditions under which we can expect actors to employ hard and soft law as alternatives, complements or antagonists. The existing literature is not wrong in focusing on how hard and soft law may be employed as complements, but this literature tells only part of the story. The article provides an overarching theoretical framework for understanding the conditions under which states and other actors choose to employ hard and soft law in different ways, emphasizing the importance of distributive conflict among countries and their constituencies and the rise of regime complexes as conditions favorable to the use of hard and soft law as antagonists.