This chapter examines the history of the Internet Corporation for Assigned Names and Numbers, or ICANN. ICANN is an unusual beast. When it came into existence, it faced legitimacy challenges: some were unconvinced that it was an appropriate wielder of the power it claimed, that they had any obligation to cooperate in its governance functions, or that they should comply with its pronouncements. I argue in this chapter that ICANN’s key move in establishing its legitimacy was its expansion and bureaucratization. ICANN initially positioned itself as an informal technical coordination body in the tradition of the Internet Engineering Task Force: today, it has shifted to adopt the appearance, processes and culture of a modern large bureaucracy. In seeking to be accepted by business enterprises and governments, it structured itself so that it looks like a business enterprise or government. It negotiated successfully with influential players as to the goals it should pursue, and reframed its structure and culture so as to conform to their images of what a successful and legitimate organization ought to look like.
Saturday, July 17, 2010
Friday, July 16, 2010
Asteriti & Tams: Transparency and Representation of the Public Interest in Investment Treaty Arbitration
This article addresses one of the crucial tensions facing modern investment arbitration: that between confidentiality and privacy on the one hand and transparency and inclusiveness on the other. It begins by reviewing how investment arbitration frameworks have addressed this tension so far, noting the traditional focus on confidentiality and privacy and the more recent trend towards transparency and inclusiveness of proceedings before ICSID and/or NAFTA tribunals.
In line with the central methodological premise of the book, the chapter then moves on to compare domestic public law approaches to questions of transparency and public interest representation. Having reviewed U.S., English, French, German and Greek law, it shows that domestic public law seems to accept the principle of transparency and provides for various forms of indirect public interest representation (e.g. through amicus curiae briefs) but also different forms of public interest claims. While this approach cannot be directly transposed to the international legal order, it can clearly – and arguably should – guide the approach of investment lawyers. In any event, the experience of many domestic legal systems suggests that there is no reason to be overly afraid of transparency and some degree of public interest representation.
- Christian Tomuschat, The Right to Life – Legal and Political Foundations
- Walter Kälin, ‘Death is different’ – The Death Penalty and the Right to a Fair Trial
- Paul Tavernier, Le recours à la force par la police
- Vera Rusinova, The Duty to Investigate the Death of Persons Arrested and/or Detained by Public Authorities
- Georg Nolte, The Bundesverfassungsgericht on the German Aerial Security Law: A Sonderweg from the Perspective of International Law?
- Rafaëlle Maison, Le crime de génocide dans la jurisprudence internationale : débats et hypothèses
- Vera Gowlland-Debbas, The Right to Life and the Relationship between Human Rights and Humanitarian Law
- Nils Melzer, The ICRC’s Clarification Process on the Notion of Direct Participation in Hostilities under International Humanitarian Law
- Stefan Oeter, Collateral Damages – Military Necessity and the Right to Life
- Michael Bothe, The Status of Captured Fighters in Non-International Armed Conflict
- Philippe Weckel, Les « combattants irréguliers » en situation d’occupation militaire
- Stefanie Schmahl, Targeted Killings – A Challenge for International Law?
- Hélène Tigroudja, Assassinats ciblés et droit à la vie dans la jurisprudence de la Cour suprême israélienne
- Jean d’Aspremont, Le tyrannicide en droit international
- Emmanuel Decaux, Le droit à la vie et le droit à une alimentation suffisante
- Eibe Riedel, The Right to Life and the Right to Health, in particular the Obligation to Reduce Child Mortality
- Astrid Epiney, ‘Réfugiés écologiques’ et droit international
- Pierre d’Argent, Conclusions générales : « Le droit à la vie en tant que jus cogens donnant naissance à desobligations erga omnes ? »
Something happened to international law between 2004 and 2009. It happened in fits and starts and was largely unforeseen. At various moments during that period, classified legal memoranda were released that analyzed and sought to affirm the legality of the United States’ programme of detention, interrogation and surveillance in connection with global anti-terrorism initiatives and military operations in Iraq and Afghanistan. Through these memos’ release, international law encountered itself and found the encounter troubling. This paper explores prospects for critical intervention within prevailing understandings of that encounter. In particular, it asks: what forms of international legal subjectivity – and what prospects and sites for international law-making – could such intervention induce? Delivered as a plenary panel address at a conference dedicated to the theme ‘International Law in the Second Decade of the 21st Century: Back to the Future or Business As Usual?’ this paper presents portions of new research forthcoming in a book: Events – The Force of International Law (Fleur Johns, Richard Joyce & Sundhya Pahuja eds., Routledge-Cavendish, September 2010).
Thursday, July 15, 2010
Froese: Evaluating the Speed at Which Member Countries Engage in Dispute Settlement: An Empirical Study
A number of recent studies have shown that using the WTO’s dispute settlement procedure is seldom a straightforward proposition of dispute resolution through an open juridical process (Dunoff 2008, Froese 2010, Nordstrom 1999). A majority of members have never used the DSU, and for those who have used it, participation in dispute settlement can be explained by a number of factors such as trade volume, income level and legal capacity (Francois, Horn and Kaunitz, 2008). It stands to reason that members who use the panel system very little, or hardly at all, are also slow to use it – that there is an inverse correlation between number of dispute panels and time until first dispute.
This paper asks a simple question: what is the average time after accession that a member brings a complaint, receives a complaint, and joins a dispute as a third party? The first section provides a brief overview of some of the recent literature pertaining to dispute settlement participation at the WTO. The second section provides a statistical analysis of the pace of dispute settlement, by examining cases initiated in the fifteen years since the WTO Agreement came into force, between January 1, 1995 and December 31, 2009. The third section examines a number of possible factors that may explain the pace at which countries at different income levels engage in dispute settlement. The paper concludes that there is much less uniformity in when members undertake dispute settlement than might be expected given the global divisions of wealth, access to information and availability of legal talent.
- Bryn Hughes & Charles Hunt, Making Sense of Peace and Capacity-building Operations: Rethinking Policing and Beyond
- Otwin Marenin, Understanding Mission Environments: Local Contexts and the Legitimation of Reforms
- Eric Scheye, Redeeming Statebuilding's Misconceptions: Power, Politics and Social Efficacy and Capital in Fragile and Conflict-Affected States
- Bruce Baker, Grasping the Nettle of Nonstate Policing
- Sinclair Dinnen, From Ideals to Reality in International Rule of Law Work - the Case of Papua New Guinea
- Volker Boege, How to Maintain Peace and Security in a Post-conflict Hybrid Political Order - the Case of Bougainville
- Damien Kingsbury, Policing, Rule of Law, State Capacity and Sustainable Peace in Timor-Leste
- Bruce 'Ossie' Oswald & Adrian Bates, Privileges and Immunities of United Nations Police
- Charles Hunt & Bryn Hughes, Assessing Police Peacekeeping: Systemisation not Serendipity
- Gordon Peake, Understanding International Police Organisations: What the Researchers Do Not See
- Hanna Bertelman, International Standards and National Ownership? Judicial Independence in Hybrid Courts: The Extraordinary Chambers in the Courts of Cambodia
- Vincent P. Cogliati-Bantz, Disentangling the "Genuine Link": Enquiries in Sea, Air and Space Law
- Athanasios Yupsanis, ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989-2009: An Overview
Wednesday, July 14, 2010
The paper looks at the practice of judicial borrowing – the 'transplanting' of legal reasoning developed in one jurisdiction by another jurisdiction – and assess its relevance to the treatment of MSENs (using case studies from EFTA and MERCOSUR court decisions). It then discusses the policy implication of acts of judicial borrowing involving MSENs, cautioning against the challenge it offers to judicial independence and institutional legitimacy.
This conference is convened to interrogate, in a robust academic and practical exchange, a number of issues, whether perceived or real, in terms of what international criminal justice portends for Africa and vice versa.
Tuesday, July 13, 2010
- William W. Burke-White & Andreas von Staden, Private Litigation in a Public Law Sphere: The Standard of Review in Investor-State Arbitrations
- Joseph P. Fishman, Locating the International Interest in Intranational Cultural Property Disputes
- Lisa P. Ramsey, Free Speech and International Obligations To Protect Trademarks
Qu’est-ce que la corruption, quelles en sont ses différentes manifestations dans les domaines économique, financier ou encore de la gestion de l’environnement ? Comment sont appréhendés les différents visages de ce phénomène par le droit international, quels sont les mécanismes de lutte contre la corruption, de la prévention à la répression? Telles sont quelques-unes des questions qui sont étudiées dans cet ouvrage qui assure la publication du colloque annuel du Réseau Francophone de Droit International (www.rfdi.net) qui s’est tenu à Paris, à l’OCDE en mai 2007.
Sovereign wealth funds – state-controlled transnational portfolio investment vehicles – began as an externally imposed category in search of a definition. SWFs from different countries had little in common and no particular desire to collaborate. But SWFs as a group implicated the triple challenge of securing cooperation between deficit and surplus states, designing a legal framework for global capital flows, and integrating state actors in the transnational marketplace. This Article describes how an apparently artificial grouping of investors, made salient by the historical and political circumstances of their host states in the mid-2000s, became a vehicle for addressing some of the hardest policy problems of the past century and a site for innovation in international law-making and institution-building. I argue that the funds’ hybrid public-private and transnational character makes them hard to define and govern, but also makes them exceptionally apt reflections of contemporary global finance and its multiple constituents. I elaborate this character in a four-part accountability matrix. The task of governing SWFs, just like the task of governing global finance, is about negotiating among public, private, internal and external demands for accountability in the absence of a stable hierarchy among them.
In the 21st century, the world is faced with threats of global scale that cannot be confronted without collective action. Although global government as such does not exist, formal and informal institutions, practices, and initiatives—together forming "global governance"—bring a greater measure of predictability, stability, and order to trans-border issues than might be expected. Yet, there are significant gaps between many current global problems and available solutions. Thomas G. Weiss and Ramesh Thakur analyze the UN's role in addressing such knowledge, normative, policy, institutional, and compliance lapses. The UN's relationship to these five global governance gaps is explored through case studies of some of the most burning problems of our age, including terrorism, nuclear proliferation, humanitarian crises, development aid, climate change, human rights, and HIV/AIDS.
Monday, July 12, 2010
- Anja Kießling, Binnenvertreibung in Afrika – eine neue Konvention für ein altes Problem
- Matthias Basedau & Johannes Vüllers, Religion als Konfliktfaktor? Eine systematische Erhebung religiöser Gewaltdimensionen im subsaharischen Afrika
- Markus Virgil Hoehne, Diasporisches Handeln in Bürgerkrieg und Wiederaufbau: Beispiele aus Somalia und Somaliland
- Johannes Muntschick, Offene Kriegsökonomien als Triebfedern für langanhaltende Bürgerkriege in Entwicklungsländern: Von Coltan und Blutdiamanten in der Demokratischen Republik Kongo und in Liberia
- Susanne Buckley-Zistel, Friederike Mieth, & Julia Viebach, Transitional Justice und Entwicklung in Afrika
- Philipp Kastner, Africa – A Fertile Soil for the International Criminal Court?
- Markus Löffelmann, Protection of Human Rights in Theory and Reality: The Case of the African Court on Human and Peoples’ Rights
- Christof Hartmann, Die ECOWAS als regionale Ordnungsmacht Westafrikas?
- Diane Ring, Who Is Making International Tax Policy?: International Organizations as Power Players in a High Stakes World
- Olympia Bekou, Rule 11 Bis: An Examination of the Process of Referrals to National Courts in ICTY Jurisprudence
- Martin Gelter, Tilting the Balance Between Capital and Labor? The Effects of Regulatory Arbitrage in European Corporate Law on Employees
- Evan J. Wallach, A Tiny Problem with Huge Implications—Nanotech Agents as Enablers or Substitutes for Banned Chemical Weapons: Is a New Treaty Needed?
- Colin Harvey & Eoin Rooney, Integrating Human Rights? Socio-Economic Rights and Budget Analysis
- Aoife Nolan & Mira Dutschke, Article 2(1) ICESCR and States Parties' Obligations: Whither the Budget?
- Sandra Fredman, Positive Duties and Socio-Economic Disadvantage: Bringing Disadvantage onto the Equality Agenda
- Ellie Palmer, The Child Poverty Act 2010: Holding Government to Account for Promises in a Recessionary Climate?
- Nicolas Gaskell, Bills of lading in an electronic age
- Sanam Saidova, The Cape Town Convention: the constitution of an international interest
- Michael N Tsimplis, The Hong Kong Convention on the Recycling of Ships
This chapter, part of a larger book reviewing the history of the U.S. Supreme Court’s approach to international law, examines the Court’s treaty doctrine between the poles of the Civil and Spanish-American Wars. It finds that - even as the period exhibited much continuity in the Court’s approach to treaties - there were substantial areas of evolution. The chapter offers three different explanatory lenses to examine that evolution: (i) the rise of Congress’s relative power in domestic politics, (ii) U.S. foreign affairs’ increased attention to non-European treaties, and (iii) increasing jurisprudential emphasis on positivism in domestic and international circles.
In terms of the treaty doctrine itself, the Chapter reveals the Court’s continued fidelity to several treaty principles developed at the Framing, especially the ability of treaties to trump state law and the capacity of private individuals to invoke rights and receive judicial remedies pursuant to U.S. treaty obligations. At the same time, it details the origins of the Court’s adoption of a theory of equivalence between statutes and treaties that paved the way for the later-in-time rule. In addition, the Chapter reviews the Court’s often inconsistent experimentation with different methods for interpreting treaties and its elaboration in theory - if not in practice - of the concept of non-self-executing treaties. All told, therefore, this Chapter reveals a more nuanced - and important - set of treaty rulings during the post-Civil War period than previous foreign affairs law scholarship has recognized.
Sunday, July 11, 2010
According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but important role for actual consent in legitimating international law. While actual consent is not necessary for justifying the enforcement of jus cogens norms, at least when they are narrowly understood, this leaves much of international law unaccounted for. By drawing on a Lockean social contract account, I show how, given the ways that international cooperation is different from cooperation in the domestic sphere, actual consent is both a possible and an appropriate legitimating device for much of international law.