This paper for the Oxford Handbook of Empirical Legal Studies (forthcoming 2010) assesses what empirical research shows in response to three questions concerning international law: (i) why international law is produced and invoked; (ii) how international law is produced; and (iii) how and under what conditions international law matters. For each of these questions, we contend that understanding state behavior requires “unpacking” the state and exploiting variation at the national and subnational level. For example, we find that most empirical work indicates that international law’s impact varies in light of such factors as the situation of the state in question (including its regime type and level of wealth); the congruity of the issue with domestic political contests; and the role of intermediaries such as government elites or civil society in conveying international law norms into domestic systems. We assess variation between different areas of international law, since different actors and institutions are present, and distinct processes and mechanisms are used in areas ranging from international human rights and criminal law to international trade, investment, and regulatory law.
Saturday, December 19, 2009
Friday, December 18, 2009
- Marco Benatar, The Use of Cyber Force: Need for Legal Justification?
- Marie-José Domestici-Met, Humanitarian Assistance Looking for a Legal Regime Allowing its Delivery to Those in Need Under any Circumstances
- Jiaxiang Hu, Market Access or Market Restrictions - Analysis on the Regulations of PRC on Administration of Foreign-funded Banks
- Nele Matz-Lück, Framework Conventions as a Regulatory Tool
- Cornelia Janik & Thomas Kleinlein, When Soering Went to Iraq . . . : Problems of Jurisdiction, Extraterritorial Effect and Norm Conflicts in Light of the European Court of Human Rights’ Al-Saadoon Case
- Marko Milanovic, The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity
- Kenneth Anderson, Does Anyone Really Want a Parliament of Man?
- Debra P. Steger, The Future of the WTO: The Case for Institutional Reform
- Robert Wolfe, The WTO Single Undertaking as Negotiating Technique and Constitutive Metaphor
- Anne van Aaken & Jürgen Kurtz, Prudence or Discrimination? Emergency Measures, the Global Financial Crisis and International Economic Law
- Bradly J. Condon, Climate Change and Unresolved Issues in WTO Law
- Ilona Cheyne, Proportionality, Proximity and Environmental Labelling in WTO Law
- Erich Vranes, The WTO and Regulatory Freedom: WTO Disciplines on Market Access, Non-Discrimination and Domestic Regulation Relating to Trade in Goods and Services
- Arie Reich, The New Text of the Agreement on Government Procurement: An Analysis and Assessment
- Susy Frankel, Challenging Trips-Plus Agreements: The Potential Utility of Non-Violation Disputes
Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to unilaterally withdraw from them. By contrast, the conventional wisdom is that nations never have the legal right to withdraw unilaterally from the unwritten rules of customary international law (“CIL”), a proposition that we refer to as the “Mandatory View.” It is not obvious, however, why it should be easier to exit from treaties than from CIL, especially given the significant overlap that exists today between the regulatory coverage of treaties and CIL. In this Article, we consider both the intellectual history and functional desirability of the Mandatory View. We find that many international law publicists of the eighteenth and nineteenth centuries thought that CIL rules were sometimes subject to unilateral withdrawal, at least if a nation gave notice about its intent. We also find that the Mandatory View did not come to dominate international law commentary until sometime in the twentieth century, and even then there were significant uncertainties about how the Mandatory View would work in practice. After reviewing this history, we draw on theories developed with respect to contract law, corporate law, voting rules, and constitutional design to consider whether it is functionally desirable to restrict opt out rights to the extent envisioned by the Mandatory View. We conclude that, although there are arguments for restricting opt out in select areas of CIL, it is difficult to justify the Mandatory View as a general account of how CIL should operate.
- Sylvette Guillemard & Jacob Stone, La Cour suprême du Canada et la compétence internationale des tribunaux
- Lotfi Chedly, L’exécution des sentences internationales annulées dans leur pays d’origine : cohérences en droit comparé et incohérence du droit tunisien
- Nathalie Ferraud-Ciandet, La Commission du Codex Alimentarius
- Florian Aumond, La « convergence antarctique ». Radioscopie de l’actuel consensus concernant la gestion du continent blanc
Acts of terror on a global scale are straining to the breaking point the due process guarantees of the legal systems of modern democracies. In unequalled breadth and depth, this book analyzes the rights of persons suspected of a crime, in normal times and emergencies, from the pre-trial phase to the trial and the post-trial period under all the universal and regional human rights treaty regimes, pertinent customary international law, general principles of law, international humanitarian law as well as the hybrid procedures developed by international criminal tribunals.
The book then presents a detailed analysis of United States’ due process guarantees, in peacetime and in war, and the executive, legislative and judicial responses to the attacks of September 11, 2001. Professor Pati appraises the American actions in terms of international law’s due process guarantees and proposes courses of action which can better defend a public order of human dignity.
The United Nations Convention on the Law of the Sea has a plausible economic logic. Jurisdiction over portions of the ocean is assigned to states which can regulate them most cheaply and value them the most. These jurisdictional rights are subject to limits that reflect the interests of other states in navigation and other uses of the seas. For the vast areas of the ocean that no state can regulate, the Convention provides for an open access regime subject to simple rules, mostly self-enforcing, to limit conflict over resources.
Thursday, December 17, 2009
How can we approach the complex United Nations system, a ‘family’of principal organs, subsidiary organs and specialized agencies? Where do we get summarizing information on the large number of reform concepts developed and implemented since the late 1990s, in particular in connection with the UN World Summit 2005?
The present book provides orientation and information: It is the second updated English edition of the German 'Lexikon der Vereinten Nationen'. The book provides in addition to concise and comprehensive information on the UN system insight into recent UN developments and reform efforts in the face of global opportunities and challenges, such as the Millennium Summit 2000 and World Summit 2005, and the establishment of important new UN organs, the Human Rights Council and the Peacebuilding Commission, in 2006.
The contributing authors are academic scholars of international law, economics and political sciences; active and former diplomats and UN officials; journalists and members of non-governmental organizations (NGOs), and offer a variety of interesting perspectives.
The entries are provided with bibliographies and with Internet addresses for further information and are supplemented in the annex by an informative text on the UN document numbering system and by a list of information facilities concerning the UN.
- Sophie Lemaire, La mystérieuse « umbrella clause » (interrogations sur l'impact de la clause de respect des engagements sur l'arbitrage en matière d'investissements)
- Stephan Adell, La nouvelle loi dominicaine sur l'arbitrage commercial du 19 décembre 2008
- Joe Verhoeven, Sur les relations entre le juge communautaire et les « autorités » internationals
- Wanda Mastor, La prison de Guantanamo : réflexions juridiques sur une zone de non-droit
- Annalisa Ciampi, L’immunité de l’État responsable de crimes internationaux devant les juridictions italiennes
- Brice Martin-Castex & Guillaume Loonis-Quélen, L’Organisation maritime internationale et la piraterie ou le vol à main armée en mer
- Sévane Garibian, Vers l’émergence d’un droit individuel à la protection diplomatique ?
- Isabelle Moulier, L’emploi de la force par la Turquie contre le Parti des travailleurs du Kurdistan dans le nord de l’Iraq
- Sabrina Robert-Cuendet, Aspects historiques et juridiques de la crise géorgienne d’août 2008 : des conflits interethniques à la guerre ouverte avec la Russie
- Miguel Acosta Sanchez, Coopération et sécurité aux frontières extérieures européennes : le cas du détroit de Gibraltar
Since the early 1990s the access to information has quickly developed into an important tool for increasing transparency in the decision-making process of public authorities regarding projects that may have a negative impact on the environment. Indeed, the fast development of environmental law - at the international, European and national levels1 - as well as the increasing awareness of citizens and nongovernmental organizations (NGOs) of their potential to prevent or at least reduce environmental pollution has been one of the most important reasons for the wide recognition received by the right to access to information. In fact, the right of access to information has been enshrined in numerous international and European instruments, so that it can serve as a prime example for analysing this book's main topic of international multi-sourced equivalent norms (MSEN), which are defined ‘as two or more norms which are (1) binding upon the same international legal subjects; (2) similar or identical in their normative content (in the words of the ILC, ‘point in the same direction’); and (3) have been established through different international instruments or ‘legislative’ procedures or are applicable to different substantive areas of the law’.
This chapter will discuss the proceeding under the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), which formed part of the wider MOX plant dispute, as a case-study for identifying the existence of MSENs concerning the right to access to environmental information. It will subsequently, analyse the extent to which MSENs create divergent rights and obligations for states that could lead to divergent or conflicting outcomes and ultimately to fragmentation.
Accordingly, Section II will identify the MSENs involved in this case-study and discuss the substantive aspects of the right to access to environmental information. Based on that, section III will examine how the OSPAR arbitral tribunal dealt with the MSEN issue. A few concluding remarks will wrap up this chapter.
Wednesday, December 16, 2009
This book explores the contentious topic of how collective and community issues should be protected and enforced in international law. Elena Katselli Proukaki takes a detailed look at the issue of third-State countermeasures, and considers the work the International Law Commission has done in this area. The volume addresses both the theory and practice of third-State countermeasures within international law. Critically reviewing the conclusions of the International Law Commission on the non-existence of a right to third-State countermeasures, it includes consideration of examples of State practice not previously covered in the literature of this topic.
In taking a thorough view of the issues involved the author identifies concerns about third-State countermeasures which remain unanswered, and considers the possible legal ramifications arising from a clash between a right to third-State countermeasures and obligations arising from other international norms. The Problem of Enforcement in International Law explores questions evolving around the nature, integrity and effectiveness of international law and the role it is called to play in a contemporary context.
- Ugo Draetta, The role of in-house counsel in international arbitration
- Andrew Tweedale & Karen Tweedale, Commencement of arbitration and time-bar clauses
- Nicola Nygh & Sam Luttrell, The domestication of the Model Law in Australia
- Ragshav Sharma, Party autonomy v public policy: appellate arbitration in India
- Philip Harris, Should adjudication have its own bespoke system on enforcement?
- Michael Reynolds, Reflections on Quo Vadis Arbitrium
- Cristina Lenz, Mediation law in Germany, Austria and Switzerland
- Sam Luttrell & Gabriel Mosens, The Arbitration Rules of the Australian Centre for International Commercial Arbitration: Distinctive features
- Shahid Jamil, Pakistani Arbitration: towards the Model Law
- Jorham Scerri-Diacono & Rachel Mamo, The Constitutionality of mandatory arbitration in Malta
In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.” For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that true, little if anything would be law. The sources of law, meanwhile, are not singular, but plural. Even were international law not domestic law, it would still be law. These errors, in the final analysis, are fairly basic. Before discussing them, consequently, this Yale Law Journal Online response considers how Professor Paulsen ends up going so completely astray. Here, his essay's invocation of Clausewitz’s “fog” of war—with its attendant distortions and misperceptions—is perhaps telling. A species of just this may be at work here, with Professor Paulsen misled not by the fog of war, but by an exaggerated sense of certainty in both the premises with which he begins, and the conclusions he seeks to advance.
This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less applicable internationally.
Professional regulation of defense advocacy at the international courts should take account of these special features and goals of the international criminal justice system. The paper addresses how such a purposive approach to legal ethics would apply to four key decisions that international criminal defense attorneys may face: 1) whether to impeach victim-witnesses whom they know to be telling the truth; 2) how to respond to clients who want to testify falsely; 3) whether to allow clients whom the lawyer believes to be innocent to plead guilty; and 4) how to respond to a client’s request to boycott or disrupt the proceedings. In some cases, the purposive interpretation may result in less aggressive advocacy than might be warranted in an ordinary domestic criminal case. In others, it may demand a more independent approach to making decisions about the client’s representation.
To implement the approach set out in this paper, I propose including a commentary to international courts’ Codes of Conduct (particularly the ICC Code), which would define more precisely the boundaries on aggressive practices, working within existing rules. The commentary would not create new categories of sanctionable conduct. Instead, it would identify situations in which attorneys are not required to engage in certain aggressive tactics or follow certain client instructions. In some cases, it would also recommend a particular course of action as most consistent with the attorneys’ ethical obligations, while leaving some flexibility to attorneys in how they interpret their duties before the ICC.
Tuesday, December 15, 2009
Lavranos: The Impact of the Kadi Judgment on the International Obligations of the EC Member States and the EC
The main aim of this contribution is to explore the impact of the ECJ's Kadi judgment on the international obligations of EC Member States and the EC/EU. The focus will be on Article 307 EC. It will be argued that EC Member States can under no circumstances rely on Article 307 EC in order to abrogate basic fundamental rights as protected with the European legal order in order to implement UN Security Council Resolutions.
The law of the sea has undergone more change in the last sixty years than in the previous four hundred. The United Nations Convention on the Law of the Sea, 1982 has introduced revolutionary changes and its provisions govern almost all the diverse uses of the oceans. Today all naval operations, in times of peace as well as war, are to be carried out within the framework of the Convention. It also has far reaching significance for maritime trade, both domestic and international.
This lucid and comprehensive book examines all key aspects of the international law of the sea, bearing in mind India’s concerns in particular. The author contends that the Convention’s regime on navigation through the territorial sea, international straits, the exclusive economic zone, abatement and control of marine pollution, marine scientific research, and the international seabed area are fully in accord with the country’s national interests. He explains the jurisdictional boundaries or functional divisions of the oceans into various maritime zones along with their military implications.
He analyses concepts like ocean governance, the limitations on the freedom of the seas and the signal importance of maritime cooperation in various spheres of the law of the sea. He argues that the strategic challenge for the international community is to evolve a paradigm shift from competitive to cooperative security so that emerging threats like trans-national crimes and terrorism may be dealt with. This book also provides an overview of controversies and points of disagreement between various states. It discusses briefly some disputes that came before the International Court of Justice, the Law of the Sea Tribunal, and national courts, as well as their judgments. It clarifies what the legitimate use of ocean space in today’s world is and what is not.
- Th.M. de Boer, The Purpose of Uniform Choice-of-Law Rules: The Rome II Regulation
- Joanna Kyriakakis, Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge
- M.D. Fink & R.J. Galvin, Combating Pirates Off the Coast of Somalia: Current Legal Challenges
- Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Romania/Ukraine Case Before the International Court of Justice
- Gentian Zyberi, Self-Determination Through the Lens of the International Court of Justice
- Gary Wilson, Self-Determination, Recognition and the Problem of Kosovo
Monday, December 14, 2009
The public policy debate on the appropriate American response to climate change is now in full swing. There are no longer significant voices disputing that climate change is real or that it is primarily the result of human activity. The issue today is what the United States should do about climate change given the risks the country faces and the likely economic impacts. The question is whether putting a price on carbon domestically is worth the cost.
In this Article we make the case that the United States should act aggressively to mitigate the effects of climate change. In doing so we take on and debunk the “climate change winner” argument, which asserts that the United States is likely to fare well in a warmer world, at least compared to most other states and, therefore, faces no rational incentive to invest in expensive mitigation efforts that will largely benefit other states. In this view, impacts on the United States are best addressed through a strategy of adaptation rather than mitigation – the construction of both literal and figurative sea walls to reduce the effects of global warming.
The dominant response to this argument has been an appeal to a perceived moral obligation on the United States based on its wealth and its historical greenhouse gas emissions. Though we are sympathetic to this moral argument, this Article takes a different approach.
We demonstrate that even if one accepts that the premises of the climate change winner argument – that impacts on the United States will be less severe than elsewhere and that the United States is not morally obliged to help foreign states – the case for American action on climate change is strong. Considering only the narrow self-interest of the United States, we show that the climate change winner argument is wrong.
We explain that existing estimates systematically underestimate the likely economic impact of climate change, and we provide rough estimates of what a more complete accounting would reveal. The sources of downward bias in existing models are numerous and include undue optimism about future warming, overlooked asymmetries around expected increases in temperature, and a failure to account for catastrophic events, non-market costs, cross-sectoral impacts, and impacts on productivity. Also ignored by existing estimates are the ways in which climate change impacts abroad will spillover into the United States through economic effects, national security, migration and disease, creating additional costs.
This Article shows that climate change is not simply a problem for the rest of the world. It is far likelier than current models suggest to lead to serious negative consequences for the United States. If this is so, the country should take prompt and aggressive action to address climate change, not out of benevolence or guilt, but out of simple self-interest.
What role do foreign institutions play in combating political corruption in developing countries? This chapter begins by describing the recently developed transnational anti-corruption regime, which encompasses legal instruments ranging from the dedicated multilateral agreements sponsored by the OECD and the United Nations, to the anti-corruption policies of international financial institutions, to components of the international antimony laundering regime, international norms governing government procurement, and private law norms concerning enforcement of corruptly procured contracts. It also surveys the evidence concerning a variety of claims about the potential advantages and disadvantages of having foreign institutions play a role in preventing, sanctioning, or providing redress for corruption on the part of local public officials. One of the main conclusions is that more attention ought to be paid to whether foreign institutions displace and undermine, or alternatively complement and enhance, local anti-corruption institutions. The analysis not only sheds light on the transnational anti-corruption regime, but also has implications for other efforts to rely on foreign legal institutions to address the problems of developing countries.
- Symposium: Walzer and the Moral Standing of States
- Yitzhak Benbaji, Introduction
- Charles R. Beitz, The Moral Standing of States Revisited
- Michael W. Doyle, A Few Words on Mill, Walzer, and Nonintervention
- Will Kymlicka, Categorizing Groups, Categorizing States: Theorizing Minority Rights in a World of Deep Diversity
- Daniel Philpott, An Ethic of Political Reconciliation
Since it was first published in 1986, Redfern & Hunter's commentary on international commercial arbitration has been widely hailed as the leading text on the subject, and essential reading for lawyers and arbitrators around the world. Based on the four authors' extensive personal experience as counsel and arbitrators, this fifth edition provides a newly updated explanation of every element of the law and practice of international arbitration. With a focus on the practice as well as the theory of international arbitration, this text provides an invaluable guide to the international arbitral process, from the drafting of the arbitration agreement to the enforcement of arbitral awards. The fifth edition updates this classic text to incorporate reference to all of the latest significant developments in the field and provides a fuller treatment of investment treaty arbitration, and international arbitration beyond the UK and Europe. In particular, the fifth edition contains substantially increased coverage of the law and practice of international arbitration in the United States, Latin America, China and India.
Following the chronology of an arbitration, the book covers applicable laws, arbitration agreements, the establishment and powers of a tribunal, the conduct of proceedings and the role of domestic courts. In addition, it provides an in-depth examination of the award itself (including the challenge, recognition and enforcement of arbitral awards), and comments on the special considerations applying to arbitrations brought under investment treaties. It draws on examples of the rules and practice of arbitration at the International Chamber of Commerce, the London Court of International Arbitration, the American Arbitration Association, the International Centre for Settlement of Investment Disputes and the United Nations Commission on International Trade Law.
La structuration du droit international public applicable aux échanges est analysée en détail dans un contexte de pluralité. L'Organisation mondiale du commerce a unifié et centralisé la production du droit des échanges, le contrôle de son respect par les membres et son interprétation. Cependant, ce droit international connaît des limites qui font que celui-ci n'est pas unitaire.
Bridging the gap between two divided disciplines, scholars of International Relations (IR) and International Legal Scholarship (ILS) have started to look for new impulses from each other. This includes thinking about issues like legalization in world politics, compliance with / contestation of inter- or transnational norms, and hegemony in international law. A shared interest in how order operates in the global realm motivates the emergence of trans-disciplinary networks, transcending theoretical and methodological boundaries. Yet, a consideration of the legal quality of international institutions do inform regime theory; interpretivist approaches to global order do benefit from a more profound knowledge of how law works within diverse institutionalised settings; and even from a (IR) realist perspective, international law is considered a specific mode of "normative" power politics.
Focusing on practice in international institutions and their diverse social environments (i.e. political, economic, or cultural processes) on a global level, the section seeks to bring together researchers from both International Law Studies and International Relations.
We are inviting papers that contribute to the issues of the section. Paper contributions can be made to the following panels (please indicate your preferences):
1. (US) Hegemony and International Law
Chair: Shirley Scott
Discussant: Michael Byers
2. Global Constitutionalism
Chair: Oliver Kessler
Discussant: Benjamin Herborth
3. Political and Legal Discourses of International Institutions
Chair: Katja Freistein
Discussant: Jacob Cogan
4. Pathologies of International Institutional/Legal Practice
Chair: Michael Barnett
Discussant: Lothar Brock
5. The Fragmentation of International Law
Chair: David Kennedy
Discussant: Jan Klabbers
6. Towards a Global Network of Courts?
Chair: Asher Alkoby
Discussant: Eyal Benevinisti
7. International Law Facing Global Challenges
Chair: Michael Byers
Discussant: David Kennedy
8. Law and Culture in International institutions: inter-disciplinary perspectives on order and governance
Chair: Iver Neumann
Discussant: Ole Jacob Sending
9. The Politicization of Customary International Law
Chair: Teresa Reinold
Discussant: Philip Liste