The book examines one of the most debated issues in current international law: to what extent the international legal system has constitutional features comparable to what we find in national law. This question has become increasingly relevant in a time of globalization, where new international institutions and courts are established to address international issues. Constitutionalization beyond the nation state has for many years been discussed in relation to the European Union. This book asks whether we now see constitutionalization taking place also at the global level.
The book investigates what should be characterized as constitutional features of the current international order, in what way the challenges differ from those at the national level and what could be a proper interaction between different international arrangements as well as between the international and national constitutional level. Finally, it sketches the outlines of what a constitutionalized world order could and should imply. The book is a critical appraisal of constitutionalist ideas and of their critique. It argues that the reconstruction of the current evolution of international law as a process of constitutionalization -against a background of, and partly in competition with, the verticalization of substantive law and the deformalization and fragmentation of international law- has some explanatory power, permits new insights and allows for new arguments.
The book thus identifies constitutional trends and challenges in establishing international organisational structures, and designs procedures for standard-setting, implementation and judicial functions.
Saturday, October 17, 2009
Friday, October 16, 2009
This chapter assesses the extent to which international litigation holds promise as a means of addressing climate change. Proceedings may be initiated within a multiplicity of courts, tribunals and quasi-judicial bodies that operate on the international plane. We can identify three main types of international proceedings. First, there is what might be termed 'progressive' proceedings - those designed to bring positive outcomes in terms of mitigating, or adapting to, climate change, or compensating its effects. As in domestic settings, the chief value of such litigation is educative rather than in changing government behaviour. A second category of international climate litigation is what can be called ‘regressive’ proceedings, which may be invoked to prevent states, or groups of states, from adopting national or international climate policies that could interfere with other norms such as those relating to trade liberalisation. Most likely to assume prominence is a third type of proceedings, which can be called ‘administrative’ litigation, within and outside of the climate change regime established by the United Nations Framework Convention on Climate Change and the Kyoto Protocol, and any successor, which may be utilised to ensure that obligations under the regime are met. Although important, the ultimate value of administrative litigation is contingent upon the stringency of emissions limitation or reduction commitments established under the international climate change regime.
This article addresses questions of U.S. international legal and space policy arising from current proposals of the U.S., Russia, China and India to establish national bases on the Moon, in part with the purpose of mining and bringing to Earth Helium-3 (He-3). He-3 is an isotope of helium that is available in quantity only on the Moon and could, as an ideal fuel for nuclear fusion reactors, furnish humanity a virtually unlimited source of safe, non-polluting energy for centuries to come. For example, it is estimated that 40 tons of liquefied He-3 brought from the Moon to the Earth – about the amount that could comfortably fit in the cargo bays of two of the existing U.S. space shuttles – would provide sufficient fuel for He-3-based fusion reactors to meet the full electrical needs of the U.S. – or a quarter of the entire world’s electrical needs – for an entire year. However, there is as yet no international consensus on whether, or how, any nation or private enterprise can exploit or acquire title to He-3 or other lunar resources. The article calls attention to what may become a “race to the Moon” to obtain He-3 and discusses: (1) the technical and economic prospects for the development of He-3-based energy; (2) the present legal situation concerning the exploitation of lunar resources such as He-3; and (3) policy options for the U.S. regarding the establishment of an international legal regime capable of avoiding conflict in the exploitation of He-3 and other lunar resources and facilitating the broad scale development of He-3-based energy.
In 1609, a little pamphlet touched off a big debate that shaped modern international law. The Lillian Goldman Law Library marks the 400th anniversary of this event with its exhibition, "Freedom of the Seas, 1609: Grotius and the Emergence of International Law." It will be on display through January 2010 in the Yale Law School.
At the dawn of the 17th century, the Dutch East India Company commissioned a young prodigy named Hugo Grotius to prepare a legal argument rejecting Spanish and Portuguese claims of dominion over the oceans around their overseas empires. His essay, Mare Liberum ("On the Freedom of the Seas") touched off a "Battle of the Books." What eventually emerged was a regime of international law to govern humanity's common interest in shared resources.
At the center of this battle was Grotius and England's leading legal scholar, John Selden. The exhibition documents their contributions and those from other European jurists, with books from the Rare Book Collection of the Lillian Goldman Law Library, Yale's Beinecke Rare Book & Manuscript Library, the Harvard Law School Library, and the private collection of Edward Gordon.
- Special Anniversary Article
- Anne Peters, Humanity as the A and Ω of Sovereignty
- Emily Kidd White, Catherine E. Sweetser, Emma Dunlop and Amrita Kapur, Humanity as the A and Ω of Sovereignty: Four Replies to Anne Peters
- Anne Peters, Humanity as the A and Ω of Sovereignty: A Rejoinder to Emily Kidd White, Catherine E. Sweetser, Emma Dunlop and Amrita Kapur
- Symposium: Issues of Globalization
- Andrew Lang & Joanne Scott, The Hidden World of WTO Governance
- Isabel Feichtner, The Waiver Power of the WTO: Opening the WTO for Political Debate on the Reconciliation of Competing Interests
- Veerle Heyvaert, Levelling Down, Levelling Up, and Governing Across: Three Responses to Hybridization in International Law
- Sungjoon Cho, Of the World Trade Court’s Burden
- Francesco Francioni, Access to Justice, Denial of Justice and International Investment Law
- Jürgen Kurtz, The Use and Abuse of WTO Law in Investor–State Arbitration: Competition and its Discontents
- Valentina S. Vadi, Trade Mark Protection, Public Health and International Investment Law: Strains and Paradoxes
- Başak Çali, On Interpretivism and International Law
- Critical Review of International Governance
- Francis Maupain, New Foundation or New Façade? The ILO and the 2008 Declaration on Social Justice for a Fair Globalization
- EJIL: Debate! - Kadi
- Gráinne de Búrca, André Nollkaemper, & Iris Canor, The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values: Three Replies to Pasquale De Sena and Maria Chiara Vitucci
- Pasquale De Sena & Maria Chiara Vitucci, The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values: A Rejoinder to Gráinne de Búrca, André Nollkaemper and Iris Canor
- EJIL: Debate! - Soft Law
- Anthony D’ Amato, Softness in International Law: A Self-Serving Quest for New Legal Materials: A Reply to Jean d’Aspremont
- Jean d’Aspremont, Softness in International Law: A Self-Serving Quest for New Legal Materials: A Rejoinder to Tony D’Amato
Zachary Douglas (Univ. of Cambridge - Law) will give a talk today at the Lauterpacht Centre for International Law Friday Lunchtime Lecture Series on "Stating the Law of Investment Arbitration: A Quixotic Enterprise?"
Thursday, October 15, 2009
This volume examines the welfare economics, political economy, and legal experience in international economic migration, and on the basis of its analysis, suggests the structure of a multilateral framework agreement on international economic migration.
Abbott & Snidal: International Regulation Without International Government: Improving International Organization Performance Through Orchestration
International organizations (IOs) have been widely criticized as ineffective. Yet scholars and commentators assessing IO performance frequently look at the actions of those organizations in isolation and focus on traditional modes of governance such as treaties and inter-state dispute-resolution mechanisms. When commentators observe poor performance, moreover, they often call for strengthening those same activities. We call this reliance on traditional state-based mechanisms “International Old Governance” (IOG). A better way to understand and improve IO performance is to consider the full range of ways in which IOs can and do operate – including, increasingly, by reaching out to private actors and institutions, collaborating with them, and supporting and shaping their activities. Such actions are helping to develop an intricate global network of public, private and mixed institutions and norms, orchestrated by IOs (and states), that we call “Transnational New Governance” (TNG). With proper orchestration by “the state” (including IOs), TNG can ameliorate both “state failure” – the inadequacies of IOG – and “market failure” – the problems that result when the creation and evolution of norm-setting institutions is highly decentralized. Orchestration thus provides a significant way for IOs to improve their regulatory performance. Some IOs already engage actively with private actors and institutions – we provide a range of illustrations, highlighting the activities of the UN Environment Programme (UNEP). Yet there remains a significant “orchestration deficit” that provides real opportunities for IOs. We draw on the lessons of existing IO activities to suggest additional possibilities for improving IO performance.
Wednesday, October 14, 2009
- Special Issue - The Grave Breaches Regime in the Geneva Conventions: A Reassessment Sixty Years On
- James G. Stewart, Introduction
- Yves Sandoz, The History of the Grave Breaches Regime
- Jean-Marie Henckaerts, The Grave Breaches Regime as Customary International Law
- Knut Dörmann & Robin Geiβ, The Implementation of Grave Breaches into Domestic Legal Orders
- Ward Ferdinandusse, The Prosecution of Grave Breaches in National Courts
- Ken Roberts, The Contribution of the ICTY to the Grave Breaches Regime
- Lindsay Moir, Grave Breaches and Internal Armed Conflicts
- Claus Kreß, Reflections on the Iudicare Limb of the Grave Breaches Regime
- Roger O'Keefe, The Grave Breaches Regime and Universal Jurisdiction
- Dieter Fleck, Shortcomings of the Grave Breaches Regime
- James G. Stewart, The Future of the Grave Breaches Regime: Segregate, Assimilate or Abandon?
This monograph analyses the historical evolution of the laws of occupation as a special branch of international humanitarian law (IHL), focusing on the extent to which this body of law has been transformed by its interaction with the development of international human rights law. It argues that a large part of the laws of occupation has proved to be malleable while being able to accommodate changing demands of civilians and any other persons affected by occupation in modern context. Its examinations have drawn much on archival research into the drafting documents of the instruments of IHL, including the aborted Brussels Declaration 1874, the 1899/1907 Hague Regulations, the 1949 Geneva Conventions and the 1977 Additional Protocol I. After assessing the complementary relationship between international human rights law and the laws of occupation, the book examines how to provide a coherent explanation for an emerging framework on the rights of individual persons affected by occupation. It engages in a theoretical appraisal of the role of customary IHL and the Martens clause in building up such a normative framework.
Two high-level commissions—the Sutherland report in 2004, and the Warwick Commission report in 2007—addressed the future of the World Trade Organization and made proposals for incremental reform. This book goes further; it explains why institutional reform of the WTO is needed at this critical juncture in world history and provides innovative, practical proposals for modernizing the WTO to enable it to respond to the challenges of the twenty-first century. Contributors focus on five critical areas: transparency, decision- and rule-making procedures, internal management structures, participation by non-governmental organizations and civil society, and relationships with regional trade agreements.
Boyle & Kim: International Human Rights Law, Global Economic Reforms, and Child Survival and Development Rights Outcomes
Are recent trends in international law supporting child rights and promoting neoliberal economic reforms complementary or contradictory? To answer this question, we identify the component parts of child rights mobilization, recent global economic reforms, and child rights outcomes to theorize the particular relationships among them. Focusing on child survival and development rights in 99 poor and middle-income countries from 1983 to 2001, we find that countries' acquiescence to established international law concerning economic rights influences the successful implementation of most of these rights, while the ratification of child rights treaties does not show an effect during the period studied. National links to child rights nongovernmental organizations are also associated with improved child rights outcomes, as is being selected to receive a loan from the World Bank (for reducing child labor and increasing immunizations). We find weak support for the hypothesis that the implementation of loan conditionalities is more deleterious for rights that are costlier to implement. We also find that achieving the goal of neoliberal economic reforms—trade openness—results in less successful implementation of most child rights outcomes considered. Finally, in a related analysis, we find that the ratification of child rights treaties, as well as the adoption and implementation of structural adjustment agreements, enhances the presence of child-related organizations within countries.
Tuesday, October 13, 2009
Conference: National Judges and Supranational Laws: On the Effective Application of the EC Law and the ECHR
Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs - which promote the stability of legal rules - have distributional implications. Before joining an agreement, an “ascendant” state will therefore often require either a greater share of the benefits from cooperation, or a reduction in exit costs through the use of formal provisions such as withdrawal clauses, sunset clauses, and provisions affecting the legality of an agreement. I analyze how states determine which concessions to make in order to reach agreement with an ascendant state. This analysis helps explain a number of puzzles in the international legal literature, such as why states with poor compliance rates are sometimes observed to join international agreements at the same or higher rates than states with good compliance rates; why weak agreements often evolve into more constraining agreements; and why multilateral agreements are more likely have low exit costs than bilateral agreements.
Private International Law (July 5-23, 2010)
- Michael Bogdan (Lund Univ.), General Course: Private International Law as a Component of the Law of the Forum
- Roberto Baratta (Univ. of Macerata), The International Recognition of Personal and Family Legal Situations
- Abdoullah Cissé (Univ. of Saint-Louis), Evolving Private International Law in Francophone Black Africa (Interpersonal Conflicts and Interprofessional Conflicts)
- Noemi Downes (Univ. of La Laguna), Foreign Second Homes and Timesharing: Lessons For Private International Law
- Nadia De Araújo (Pontifical Catholic Univ. of Rio de Janeiro), International Contracts and Party Autonomy
- Jeffrey Talpis (Univ. of Montreal), The Transmission of Property at Death other than by Succession in Private International Law
- Johan Erauw (Ghent Univ.), Substitution and Principle of Equivalence in Private International Law
- Léna Gannagé (Univ. Panthéon-Assas (Paris II)), The Methods of Private International Law put to the Test of Conflicts of Cultures
Public International Law (July 26-August 13, 2010)
- Luigi Condorelli (Univ. of Florence), General Course: Teaching International Law: An Attempt at Inductive Narration
- William J. Davey (Univ. of Illinois), The Non-Discrimination Rules of the World Trade Organization
- Guiguo Wang (City University of Hong Kong), Radiating Impact of WTO on Its Members’ Legal System: The Chinese Perspective
- Hilary Charlesworth (Australian National Univ.), Democracy and Justice in Post-conflict Societies: The International Law Framework
- Jiri Malenovsky (Court of Justice of the European Communities), The Independence of International Judges
- Jean-Michel Arrighi (Organization of American States), The Organization of American States and International Law
- Rudolf Dolzer (Univ. of Bonn), Evolving International Framework for Oil and Gas Investments
Emily Reid (Univ. of Southampton - Law) will give a talk today at the UCL Faculty of Laws WTO Scholars' Forum on "WTO Law and Human Rights."
Monday, October 12, 2009
- Jack M. Beard, Law and War in the Virtual Era
- Mac Darrow & Louise Arbour, The Pillar of Glass: Human Rights in the Development Operations of the United Nations
- Note and Comment
- Natasha A. Affolder, The Private Life of Environmental Treaties
- Current Development
- D. Stephen Mathias, The 2008 Judicial Activity of the International Court of Justice
- Volume 333
- R. Müllerson, Democracy Promotion: Institutions, International Law and Politics
- Riccardo Pisillo Mazzeschi, Responsabilité de l’Etat pour violation des obligations positives relatives aux droits de l’homme
What legal principles apply when courts in different jurisdictions are simultaneously seised with the same dispute ? This question — of international lis pendens — has long been controversial. But it has taken on new and urgent importance in our age. Globalization has driven an unprecedented rise in forum shopping between national courts and a proliferation of new international tribunals. Problems of litispendence have spawned some of the most dramatic litigation of modern times — from anti-suit injunction battles in commercial disputes, to the appeals of prisoners on death row to international human rights tribunals. The way we respond to this challenge has profound theoretical implications for the interaction of legal systems in today’s pluralistic world. In this wide-ranging survey, McLachlan analyses the problems of parallel litigation — in private and public international law and international arbitration. He argues that we need to develop a more sophisticated set of rules of conflict of litigations, guided by a cosmopolitan conception of the rule of law.
- Mary Keyes, Jurisdiction Under the Hague Choice of Courts Convention: Its Likely Impact on Australian Practice
- Reid Mortensen, The Hague and the Ditch: The Trans-Tasman Judicial Area and the Choice of Court Convention
- Guangjian Tu, Finding a Proper Nexus for Constructing Specific (Special) Jurisdiction Regarding Commercial Contract and Tort Cases: A Comparative Study of the US and European Approaches
- Oliver L. Knöfel, Judicial Assistance in the Taking of Evidence Abroad in Aid of Arbitration: A German Perspective
- Elena Rodriguez Pineau, Conflict of Laws Comes to the Rescue of Competition Law: The New Rome II Regulation
- Jonathan Fitchen, Choice of Law in International Claims Based on Restrictions of Competition: Article 6(3) of the Rome II Regulation
- Ruth Lamont, Evaluating European Values: The EU's Approach to European Private International Law
For thirty years, international human rights litigation in U.S. courts has developed with little attention to a lurking doctrinal objection to the entire enterprise. The paradigm international human rights case involves a suit against a foreign government official for alleged abuses committed abroad under color of state law. A potentially dispositive objection to this litigation is foreign sovereign immunity. The Foreign Sovereign Immunities Act (FSIA) creates presumptive immunity for foreign states and has no exception that would cover human rights cases. Many courts have assumed that the FSIA has no relevance to human rights suits as long as they are directed against state officials rather than the state itself. Recently, however, courts have begun to reject this assumption, and the issue is now before the Supreme Court in Yousuf v. Samantar. This essay makes two contributions to the debate over whether the FSIA applies to suits against individual foreign officials. First, it shows that, contrary to what some courts have assumed, suits against individual officials fall naturally within the plain language of the FSIA’s immunity provisions. Second, it shows that the international law of state immunity, which is relevant to the proper interpretation of the FSIA in several ways, supports this construction. Combining these and other points, the essay concludes that the FSIA confers presumptive immunity in suits against state officials, including former state officials, for their official acts committed while in office, and that this immunity applies even in human rights cases. This conclusion, if accepted, would narrow the scope of human rights litigation in U.S. courts, but it would not affect other legitimate mechanisms of human rights accountability.
Sunday, October 11, 2009
- Tomasz H. Widłak, Sovereignty vs. human rights. A case of the relation between order and justice in international society
- Ilias Bantekas, The possibility or not of international norm change following mass human rights violations
- Anthony Carty, Territory and territorial waters in post-colonial international law
- Eric Wilson, The republic of heterology: De Indis of Hugo Grotius, deconstruction and the political ontology of the Dutch Stat