This paper examines whether domestic courts can be cast as the ‘natural judges’ of international law. ‘Natural judge’ is meant here in the sense of the ‘immediate,’ ‘ordinary’ judge of international law, who can only be removed through a centrally instituted judge. Given the lack of a centrally organized international judicial system, the suggestion that domestic courts are the ‘ordinary judges’ of international law has significant repercussions on the physiognomy of the international legal system. Despite the fact that in some of the decisions the reasoning of the courts is based solely on domestic law, the domestic law relied on - typically fundamental rights - is of universal radiance, as evidenced by almost universally ratified treaties and customary international law. Domestic courts are then in fact applying law based on internationally agreed standards as the immediate judges, offering effective remedies for the violation of rights influenced or shaped by, or interpreted under, international law. This trend can signify the move to a more effective application of international law, one taking place in court, even if a domestic court, rather than by a decision of the executive to invoke responsibility of another actor, or bring an international claim.
Saturday, October 2, 2010
Friday, October 1, 2010
The aim of this paper is to focus on that particular form of judicial conversation represented by what I have endeavoured to call the techniques of 'hidden dialogue' between the European Court of Justice (ECJ) and the national Constitutional Courts. By 'hidden dialogue' I refer to that unexplored side of the relationship between the Constitutional Courts and the ECJ which feeds on somewhat unorthodox avenues of judicial communication, that is, methods of judicial communication other than the preliminary ruling procedure set out in Article 234 of the EC Treaty (ECT) (Article 267 TFEU) which are not formalised according to the letter of the treaties.
- Marcus Smith, The legal nature of credit default swaps
- Simon Baughen, Bailment or conversion? Misdelivery claims against non-contractual carriers
- Gerard McMeel, Conduct of banking business brought into FSA fold
- Kathleen Goddard, Is it time to reconsider sails?
- Alan Khee-Jin Tan, The EU Ship-Source Pollution Directive and coastal state jurisdiction over ships
- Chris Ward, Unsafe berths and implied terms reborn
Article 28 of the Rome Statute explicitly provides that the command responsibility doctrine may be applied to both ‘commanders and other superiors', and sets out separate criteria for the two categories of superiors. The question arises how the doctrine should be applied by the International Criminal Court and by other international courts and tribunals. Up until now, the doctrine has been applied to both military and civilian superiors without a distinctive provision. The author examines the applicability of the command responsibility doctrine to civilian superiors, taking as a point of departure the origin of the doctrine and the unique position of the commander. An analysis of cases against civilian leaders identifies the challenges that prosecutors and judges face in these cases. The author provides, finally, an assessment of the remaining hurdles in the application of the doctrine, and offers a solution which is based on respect for the purpose of the doctrine. The book is a valuable source and tool for academics and practitioners in international criminal law and international humanitarian law, academics and students at National Defence Colleges, as well as military legal advisers and higher military officers.
Keitner: Kiobel v. Royal Dutch Petroleum: Another Round in the Fight Over Corporate Liability Under the Alien Tort Statute
Thursday, September 30, 2010
- Andrew Drzemczewski, Election of Judges to the Strasbourg Court: An Overview
- Elisabeth Lambert Abdelgawad, Emilie Becue, Julie Tavernier & Line Lecerre, French Law on the Detention and Return of Irregular Migrants and the European Directive
- Katrien Lefever, Hannes Cannie, & Peggy Valcke, Watching Live Sport on Television: A Human Right? The Right to Information and the List of Major Events Regime
- Stuart Wallace, The Empire Strikes Back: Hearsay Rules in Common Law Legal Systems and the Jurisprudence of the European Court of Human Rights
Le présent ouvrage reproduit les Actes des journées d’étude organisées conjointement par l’Association roumaine de droit international et des relations internationales (ADIRI) et le Centre de droit international de Nanterre (CEDIN) sur «L’actualité du droit des fleuves internationaux » qui se sont tenues à Paris les 24 et 25 octobre 2008. Cette rencontre a été l’occasion de redécouvrir cette branche trop négligée du droit international qu’est le droit des fleuves internationaux – dont l’utilité pratique évidente ne doit pas éclipser le très réel intérêt intellectuel et les (stimulantes) difficultés techniques.
Tout en se concentrant sur les évolutions récentes, les interventions ont porté à la fois sur des aspects généraux du droit des fleuves internationaux et sur des questions plus concrètes et « pointues » liées à des cours d’eau déterminés ou à des incidents spécifiques, grâce à des éclairages apportés tant par des universitaires que par des praticiens – plusieurs participants pouvant d’ailleurs se prévaloir de l’une et l’autre qualité.
Illustrées par des monographies consacrées au Danube et à quelques autres fleuves internationaux, de nombreuses études transversales s’interrogent sur la manière dont le droit appréhende des phénomènes naturels (alluvionnement, formation d’îles, deltas) ou humains (pollution) et décrivent les instruments juridiques généraux ou particuliers qui s’appliquent à la délimitation et à l’usage des cours d’eau internationaux et les mécanismes chargés de leur gestion – une gestion qui s’avère parfois très difficile et délicate vue la multitude et la diversité des intérêts des États riverains.
Bien que l’on ne puisse sans doute pas parler d’un régime juridique uniforme applicable aux fleuves internationaux, dont chacun est encadré (de manière plus ou moins précise) par des réglementations qui prennent en considération des facteurs sociaux, économiques et politiques propres à chaque région, des tendances générales se dessinent cependant, notamment en matière de prévention de la pollution et de règlement des différends.
Adoptée a l'unanimité par l'Assemblée générale des Nations Unies le 9 décembre 1948, la Convention sur la prévention et la répression du crime de génocide se place parmi les premiers instruments de l'après-guerre destines a défendre et a promouvoir les droits de l’homme, tout en présentant des caractéristiques singulières. Il s’agissait, en effet, de consacrer sur un plan juridique la notion dont la paternité revient a Raphaël Lemkin, matérialisant ainsi la réponse de la communauté internationale a l’horreur suscite par l’ampleur des atrocités commises au cours de la Deuxième Guerre mondiale.
D'emblée, la Convention qualifie le génocide de «crime du droit des gens», contient une définition qui, malgré ses faiblesses, garde toute sa vitalité ayant été par la suite reprise telle qu’elle dans d’autres instruments, et instaure des moyens aux fins de sa répression et sa prévention.
Le soixantième anniversaire de l’adoption de la Convention sur le génocide a fourni une occasion de réfléchir de nouveau sur l'évolution du droit au cours de cette période et de se pencher sur les divers aspects et questions qui continuent de préoccuper la communauté internationale autour du «crime des crimes». A cette occasion, la Branche hellénique de l’International Law Association et la Fondation Marangopoulos pour les droits de l’homme ont coorganisé un colloque international a Athènes, les 12 et 13 novembre 2008, ayant pour but de revoir les dispositions de la Convention a la lumière des développements récents. Les actes de la conférence, qui sont publies dans le présent volume en français ou en anglais selon le cas, fournissent un aperçu des principaux problèmes actuels en matière de génocide.
The article examines the standards applicable to investigations of violations of international humanitarian law during an armed conflict. In addition to considering the IHL and HR provisions on the subject, it examines the practices of the US, Canada, UK and Australia.
Wednesday, September 29, 2010
The main aim of this contribution is to analyze the interaction and impact of EU law (i.e Community law) on BITs and more generally on international investment law. Accordingly, section II will very briefly highlight some of the distinctive features of BITs as well as some of the recent developments in this field. Section III will then turn towards the relevant Community law aspects. This section will focus on the ECJ’s jurisprudence on BITs and the innovations introduced by the Lisbon Treaty. Based on the previous sections, section IV will attempt to provide an analysis, while section V will wrap up this contribution with some concluding remarks.
Every other year the American Branch holds International Law Weekend-West. The next ILW-West will take place February 25-26, 2011, at Southwestern Law School in Los Angeles, which is celebrating its 100th anniversary. The theme of the conference is: "2021: International Law Ten Years from Now." The conference will examine a broad range of legal areas that are coping with and adjusting to the challenges of conflict, technology, and globalization in the modern era. Panels will identify significant developments or issues related to a specific area of international law – e.g., international arbitration and litigation, international finance, international transactions, international trade, international human rights, climate change and international environmental law, international criminal law, and legal developments of note in Latin America or Asia – and analyze their potential impacts in shaping the future of international law. This conference will examine current international issues and trends by assessing what the future may look like. Proposals from those interested in chairing or speaking on a panel may be directed to Professor Robert Lutz at rlutz[at]swlaw.edu. (Proposals are particularly invited from those in the western United States.)
These remarks, delivered at the 103rd Annual Meeting of the American Society of International Law, concern the application of the principle of legality (nullum crimen sine lege) in international criminal law. While international criminal law judges have not strictly applied the principle, their jurisprudence does not compromise the fundamental fairness of modern proceedings, because the judges acted consistently with the international formulation and authoritative interpretations by human rights institutions of the principle.
The article takes up the foundational challenge of public international law (“Is it really law?”) in a different key. It shifts the focus from exploring effectiveness or the rule of law to the question of what it takes for actors to participate in a legal relationship. A relationship of this type involves distance in compliance as well as distance in engagement. Law is defective, but nonetheless law, whenever a mismatch arises in the relation of one and the other. The article explains that core parts of public international law are constitutionally deficient. Doctrinal attempts to address this deficiency give rise to defective law.
Tuesday, September 28, 2010
There is a history of mass crimes in independent India beginning from the horrific violence during the partition of the country in 1947 to the more recent ones in Gujarat in 2002, in Nandigram, West Bengal in 2007, in Kandhamal, Orissa in 2008 and the on-going violence in Jammu and Kashmir, in the North-East part of India or by Salwa Judum in Chattisgarh among others. The legal and judicial process has largely failed to address these situations of mass crimes and hold those responsible to account, thereby encouraging and perpetuating a culture of impunity. The reasons for such failure range from the inadequacy of existing laws and provisions in the Indian criminal laws, to the inability of the investigative and legal machinery to deal with crimes of mass scale; and the unwillingness of the authorities to address these crimes when they are state-sponsored or supported.
This article aims to characterize what is recently understood as mass crimes in India, as the international jus cogens crime of Crimes Against Humanity. Using some of the documented cases of mass crimes in India, the paper will demonstrate that while each of these cases are different in their details of causes, facts and responsibility, they, nevertheless, share common elements which meets the definition of Crimes Against Humanity. The paper will demonstrate that existing Indian laws do not have scope to treat mass crimes as anything other than common crimes and therefore cannot even begin to do justice to address situations of mass crimes. The article argues for the need for a better and accurate conceptual understanding of mass crimes in Indian laws and therefore the need for introducing a law on Crimes Against Humanity. The paper also discusses the relevance of including the crime of persecution as one of the crimes against humanity and its importance in the Indian context. While introduction of such a law will equip the Indian judicial system to accurately understand and prosecute cases of mass crimes, it will also provide an opportunity to bring Indian laws at par with recent developments in international human rights standards and international criminal law.
If there is one designation that has come to symbolize the complexity of characterizing the struggle against international terrorism as an armed conflict, it is “unlawful enemy combatant.” For the U.S. military and the al Qaeda and Taliban operatives it detained following September 11th, the characterization defined a group subdued enemy personnel who would be detained to prevent their return to hostilities, but who would also be denied the legal status of prisoner of war and the accordant protections of the Third Geneva Convention. Operating as a “combatant” without privilege (President Obama has substituted the term “unprivileged belligerent” for these detainees) deprives the individual of legal and moral equivalency with his privileged opponent: state actors. As a result, the rules established by international law to protect these “privileged” combatants must be denied to the unprivileged counterpart.
This theory of “status” and “privilege” among combatants is a genuine article of faith. It is derived from an unassailable interpretation of the Third Geneva Convention’s prisoner of war qualification equation. Prisoner of war status, which is international law’s manifestation of the “privileged” or “lawful” combatant, is reserved exclusively for combatants who fight on behalf of a state during inter-state armed conflict, and who satisfy four widely known conditions of carrying arms openly, wearing a fixed distinctive emblem recognizable at a distance, operating under responsible command, and complying with the laws and customs of war. What is equally important in this equation, however, is that these factors apply only to combatants engaged in inter-state armed conflicts, effectively excluding from the lawful combatant status any individual fighting on behalf on an entity not affiliated with state authority. What has been absent from the avalanche of scholarship, debate, and even judicial analysis of the validity of this detention without privilege theory is a critical assessment of whether the underlying rationale for the legal dichotomy between the lawful and unlawful combatant is logically applicable to non-state transnational actors. Such an assessment must focus on not only the origins of this dichotomy, but also - and perhaps more importantly - on the ostensible effect intended by denial of lawful combatant status for non-state actors. Considering the issue through this “effects based” analytical lens raises a genuine question as to whether the denial is the most effective way to achieve these desired effects.
This article will explore this question by focusing on both these proposed analytical elements. It will begin with a review of the origins of the lawful/unlawful enemy combatant dichotomy. It will then discuss the ostensible effects the United States desires to achieve by applying this dichotomy to transnational non-state actors. Ultimately, it will question whether the unthinkable – extending the opportunity to qualify for the privileged combatant’s immunity – might actually offer a greater likelihood of achieving these effects than clinging to the current lawful/unlawful combatant dichotomy.
- October 18, 2010 - Wolfgang Wurmnest (Univ. of Hanover), "Maritime employment contracts in the conflict of laws"
- October 27, 2010 - Kyriaki Noussia (Rokas & Partners, Athens, Greece), "Environmental pollution liability and insurance law ramifications in light of the 'Deepwater Horizon' oil spill"
- November 10, 2010 - Peter Wetterstein (Åbo Akademi Univ.), “Remedying of environmental damage caused by shipping”
The International Organizations Interest Group of the American Society of International Law will hold a works-in-progress workshop on October 29, 2010, at the headquarters of the Organization of American States, Washington, DC. The workshop will begin at 9am and end at 430pm.
The workshop's format will be as follows. Each paper will be introduced by a commentator for about ten minutes. The author will have the opportunity to respond, if he or she wishes to do so. The floor will then be opened for comments, reactions, and discussion from the group as a whole. One of the sessions will focus the work of three junior scholars. The workshop is conducted on the assumption that everyone has read all of the papers in advance. One need not present a paper or comment on a paper to participate. The workshop is free for ASIL members and $15 for non-members. Participants must pre-register here. Lunch will be provided.
Those interested in serving as commentators should contact the workshop’s organizers no later than October 4. Selection of commentators will be made by October 10. Papers will be distributed to all participants the week of October 18.
The papers that will be presented include:
Richard Burchill (Univ. of Hull – Law), “Regional Organisations as an Expression of Diversity in the International System”
Noemi Gal-Or (Kwantlen Polytechnic Univ. – Politics and Law), “The International Responsibility of the WTO”
David Gartner (Arizona State Univ. – Law), “Beyond the Monopoly of States: Civil Society and the Governance of International Institutions”
Ian Hurd (Northwestern Univ. – Political Science), “Actor, Forum, Resource: Legal and Political Aspects of International Organizations”
Ian Johnstone (Tufts Univ. – Fletcher School) & Garth Schofield (Permanent Court of Arbitration), “Relational Contract Theory and UN Peacekeeping”
Young Scholars Panel:
Megan Donaldson (New York Univ. – Law), “The Politics of Transparency: The World Bank Access to Information Policy”
Joseph Perkovich (Dorsey & Whitney LLP), “The Institutional Legal Framework for Exchange Stability”
Guy Fiti Sinclair (New York Univ. – Law), “Of Living Trees and Constitutional Moments: Social Imaginaries and the Expansion of International Organizations”
We look forward to seeing you in Washington.
Jacob Katz Cogan
- Emmanuel Gaillard, The Representations of International Arbitration
- Gabrielle Kaufmann-Kohler, Soft Law in International Arbitration: Codification and Normativity
- Daniel Shapiro & Adam Kinon, The Prevention Principle: A Pragmatic Framework to Prevent Destructive Conflict
- Wendy J. Miles & Daisy Mallett, The Abyei Arbitration and the Use of Arbitration to Resolve Inter-state and Intra-state Conflicts
- Jan Paulsson, The Power of States to Make Meaningful Promises to Foreigners
- Christoph Schreuer, Full Protection and Security
- Donald McRae, The WTO Appellate Body: A Model for an ICSID Appeals Facility?
- Joost Pauwelyn, The Dog That Barked But Didn’t Bite: 15 Years of Intellectual Property Disputes at the WTO
- Chang-Fa Lo, Good Faith Use of Dictionary in the Search of Ordinary Meaning under the WTO Dispute Settlement Understanding
- Chester Brown, International, Mixed, and Private Disputes Arising Under the Kyoto Protocol
- Stéphanie De Dycker, Private International Law Disputes before the International Court of Justice
- V.V. Veeder, Is there a Need to Revise the New York Convention?
Monday, September 27, 2010
Applications are invited for a Lectureship (UE08) in the School of Law from candidates with research interests in International Economic Law.
The successful candidate will be expected to contribute to the teaching programme, particularly at post graduate level, and to undertake post graduate supervision. He or she will contribute to the development of new initiatives in teaching, research, and continuing professional development (“cpd”), including those which will connect the School of Law and others in the College of Humanities and Social Science. Applications from individuals with demonstrable experience and achievement in their specialist area, as reflected in a growing research portfolio, will be particularly welcome. In addition, applicants are invited to explore how their research interests compliment the existing strengths of the School of Law in cognate areas such as commercial and EU law.
The position is available from 5th January 2011. Appointment will be on an open-ended basis.
Salary Scale: £36,715 - £43,840
The closing date for receipt of applications is Friday 1st October 2010.
- Lauren Birchfield & Jessica Corsi, Between Starvation and Globalization: Realizing the Right to Food in India
- Bernadette Atuahene, Property Rights & the Demands of Transformation
- Luis A. Abad, Forging a Translation: The “Circumstances of Sale” Criterion, Transfer Pricing, and Economics
- Peggy E. Chaudhry & Stephen A. Stumpf, Consumer Complicity with Counterfeits: Fight or Flight—Addressing the Intellectual Property Issues in International Trade
- Bernd Janzen, Picking Winners and Losers in the U.S. Generalized System of Preferences: Improving the Product Competitiveness Test
- Wenhua Ji & Cui Huang, China’s Path to the Center Stage of WTO Dispute Settlement: Challenges and Responses
- Tetsuji Tsujikawa, Restrictions Relating to Investment in Entities Holding Infrastructure in Japan
- Panayota Anaboli, Customs Violations and Penalties in Europe: Harmonization on the Horizon?
- Laura L. Fraedrich, Regulation Defies Congressional Mandate: Antidumping and Nonmarket Economies
Banks: Trade, Labor and International Governance – An Inquiry into the Potential Effectiveness of the New International Labor Law
Globalization has led states and civil society groups to seek new and more effective governance in international labor law. The United States and Canada have each concluded a path-breaking, controversial and still-evolving series of international trade-related labor agreements with their trading partners. These agreements, and ongoing critiques that continue to influence their development, have been shaped by a particular model of governance. That model seeks, in the interests of effectiveness, a set of sharply defined rules and court-like adjudication processes directly linked to economic sanctions. The potential effectiveness of this governance model has received no systematic evaluation. This article undertakes the first such assessment. Drawing on game theory, it first sets out a stylized picture of the likely interests of industrialized and developing economy states in international labor standards. It then assesses, in the light of international relations theory and empirical research into the effectiveness of international labor law and analogous regimes, the potential capacity of competing models of governance to exert required international influence. It examines in a similar manner the particular challenges for international governance posed by the political, policy and administrative complexity of raising labor standards through the necessary sustained state interventions. It concludes that the new international trade and labor agreements offer important potential gains in effectiveness for international labor law. However, in their present form these agreements are unlikely to lead to widespread improvements in respect for even the most fundamental of labor standards. This is because they rely too heavily on a complaints adjudication model of governance. The influence of adjudication is likely to be too episodic, too uninformed, too lacking in strategic focus, too divisive and too easily contained to handle the problem of raising labor standards on its own, or even as the principal strategy within a more complete toolkit of approaches. The paper then points towards an alternative and more promising approach described as Leveraged Deliberative Cooperation, grounded in New Governance theory and experience under the United States Cambodia Textiles Agreement.
Iwanami: Delegating the Power to Govern Security Affairs: The Composition of the UN Security Council
This paper examines the composition of the UN Security Council with two newly collected data sets on Council membership, one is on the elected members and the other on the nominated members. Using these data sets, I examine which countries are most likely to be nominated by the regional group and then be elected by the General Assembly. The primary interest of this paper is to analyze the effects of Members' policy preferences on the likelihood of gaining seats. Using ideal point estimates, I investigate whether elected members' policy preferences differ substantially from those of the permanent members and whether the elected members actually increase the heterogeneity in the Security Council. The regression results suggest that countries whose ideal points are closer to that of the United Sates are most likely to get elected among all UN Members, including the median voter. Despite the presence of relatively democratic procedures on electing non-permanent members, UN Members tend to elect pro-U.S. countries voluntarily so that the Council functions efficiently without being disturbed by countries with conflicting interests. Moreover, I find that countries which have a reputation for free-riding or transgressing are less likely to obtain seats on the Council. This result suggests that UN Member attempt to prevent the suboptimal provision of the public good by punishing members which fail to bear the burden or break important international norms.
- Jun Kazeki, Anti-dumping Negotiations under the WTO and FANs
- Michael E.S. Hoffman, Job Losses and Perceptions of Globalization
- Sachin Chaturvedi & S.K. Mohanty, Assessing the Market Openness Effects of Regulation in India: An Overview of Emerging Trends and Policy Issues
- Dukgeiun Ahn & William J. Moon, Alternative Approach to Causation Analysis in Trade Remedy Investigations: ‘Cost of Production’ Test
- Christine McIsaac, Opening a GATE to Reduce Global Emissions: Getting over and into the WTO
- Heng Wang, WTO Origin Rules for Services and the Defects: Substantial Input Test as One Way Out?
- Kym Anderson & Johanna Croser, New Indicators of How Much Agricultural Policies Restrict Global Trade
- Fabio Morosini, The MERCOSUR Trade and Environment Linkage Debate: The Disputes over Trade in Retreaded Tires
- Petros C. Mavroidis, WTO and PTAs: A Preference for Multilateralism? (or, the Dog That Tried to Stop the Bus)
Sunday, September 26, 2010
- Ian Hunter, Kant's Regional Cosmopolitanism
- Manuel Jiménez Fonseca, The Colonization of American Nature and the Early Development of International Law
- Dzovinar Kévonian, Les juristes et l'Organisation internationale du travail 1919-1939. Processus de légitimation et institutionnalisation des relations internationales
- Astrid Kjeldgaard-Pedersen, The Evolution of the Right of Individuals to Seise the European Court of Human Rights
- Haniff Ahamat, The Position of Siyar on Free Trade. A Historico-Legal Analysis