The latest issue of Climate Law (Vol. 1, no. 3, 2010) is out. Contents include:
Franco Ferrari & Stefan Kröll have published Conflict of Laws in International Arbitration (Sellier 2010). Here's the abstract:Irrespective of the increasing harmonization of law at the transnational level, every arbitration raises a number of conflict of laws problems relating to procedural questions as well as to issues concerning the merits of the case. Unlike a state court judge, the arbitrator has no "lex fori" in the proper sense providing the relevant conflict rules to determine the applicable law. This raises the question of what conflict of laws rules to apply and, consequently, of the extent of the freedom the arbitrator enjoys in dealing with this and related issues. The best example of the importance of conflict of laws questions in arbitration is the Vivendi-Elektrim saga where the outcome of the various proceedings depended on the question of characterization.
In the past, concerns have been expressed about the secrecy of international treaty arbitration. This paper attempts to show how the investment treaty arbitration system has responded to these criticisms. It starts by reviewing the arguments in favour of transparency and what different forms transparency can take in the context of investment treaty arbitration. The paper then sketches out the main developments in relation to transparency and highlights key issues that still remain to be resolved. In conclusion it is noted that the extent of publicity and public participation in a particular arbitration will depend on the instrument under which the claim is being brought. Whilst a small number of states have sought to promote the transparency agenda in their investment treaties, much more could be done by the majority of states.
In recent years, the thousands of international investment treaties have given rise to hundreds of investor-state arbitrations. International investment law has thus become a topic of great practical importance, and one which has received significant attention in both arbitral awards and academic literature. International investment law, however, appears to possess inherent ‘dualities’ – analogous to an optical illusion, a single image or object which may appear strikingly different to different viewers or from different perspectives. The dualities of international investment law are presented in some of the most fundamental questions concerning its nature and purpose. This chapter explores the ideas or influences which lead analysis of the subject in conflicting directions and invite these seemingly contradictory viewpoints, by focusing on the ‘public-private’ distinctions or conceptions which lie at its contested foundations. These public-private dualities thus form a kind of conceptual lens through which international investment law may be viewed, and through which its different appearances or representations can be examined.
Stephen Allen (Brunel Univ. - Law) & Alexandra Xanthaki (Brunel Univ. - Law) have published Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing 2011). The table of contents is here. Here's the abstract:The adoption of the Declaration on the Rights of Indigenous Peoples by the United Nations General Assembly on 13 September 2007 was acclaimed as a major success for the United Nations system given the extent to which it consolidates and develops the international corpus of indigenous rights. This is the first in-depth academic analysis of this far-reaching instrument. Indigenous representatives have argued that the rights contained in the Declaration, and the processes by which it was formulated, obligate affected States to accept the validity of its provisions and its interpretation of contested concepts (such as 'culture', 'land', 'ownership' and 'self-determination'). This edited collection contains essays written by the main protagonists in the development of the Declaration; indigenous representatives; and field-leading academics. It offers a comprehensive institutional, thematic and regional analysis of the Declaration. In particular, it explores the Declaration's normative resonance for international law and considers the ways in which this international instrument could catalyse institutional action and influence the development of national laws and policies on indigenous issues.
The existence of the European Court of Human Rights is generally considered to be central to the success of the European Convention on Human Rights. For that reason, there is ongoing and significant concern about the future of the Court; a future that is characterised by fragility emanating from a number of sources not least of which are increased political antipathy towards the Court from a variety of member states and enormous volumes of applications resulting in serious logistical difficulties. Taking the fragility of the Court’s future into account, this paper asks whether the dual functions that we expect the Court to perform — a constitutionalist function and an adjudicatory function — can be sustained or whether, in fact, that dual functionality contributes to the Court’s fragility.
This fragility clearly presents a crisis for the Court, and it is not one of which either it or the member states to the Council of Europe are unaware. Indeed, in early 2010 a conference was held in Interlaken, Switzerland in order to agree upon a declaration that would secure the future of the Court. At that conference and, indeed, in the Declaration that followed it, the basic principle of dual functionality was preserved. In this paper I argue that any solution that attempts to maintain a full commitment to the European Court of Human Rights acting as both a constitutionalist and an adjudicatory tribunal has only a limited prospect of success in securing the Court’s future. Not only is that approach one that fails to come fully to grips with the logistical nightmares from which the Court finds it so difficult to awaken, but it also allows for the Council of Europe system to abdicate its political role in ensuring compliance with the Convention and for domestic politics and courts to rely too heavily on the subsidiary regional Court instead of developing an autonomous jurisprudence on the Convention.
This paper introduces and frames an ongoing research project on informal international law-making (IN-LAW). It defines what is meant by "informal" on three axes: output informality, process informality and actor informality. The core substantive question addressed is how to balance the effectiveness of this new model of international cooperation with perceived problems of accountability. The paper offers working definitions of accountability and different lenses through which levels of accountability can be assessed.
The latest issue of the Journal of Private International Law (Vol. 6, no. 3, December 2010) is out. Contents include:
This article provides a framework for thinking about Asian approaches to and impact on global health diplomacy and governance that might contribute to more sophisticated analyses on Asia in global health politics, diplomacy, and governance. First, the article examines the “rise of Asia” and “rise of health” as overlapping but unconnected developments in international relations. Second, it analyzes how the shift of power and influence towards Asia, largely caused by China’s and India’s emergence as great powers, affects global health politics and potential Asian contributions to global health diplomacy and governance in the future. Third, the article looks at normative ideas that characterize Asian approaches to international cooperation and how these ideas affect Asian participation in global health diplomacy and governance. Fourth, the article considers Asian practices on international health cooperation, which include bilateral relations, regional activities, and participation in multilateral organizations. The article ends with conclusions about Asian conceptualizations of and contributions to global health diplomacy and governance.
The latest issue of the Journal of World Trade (Vol. 44, no. 6, December 2010) is out. Contents include:
Hope as well as fear was running wild when in 1995 the multilateral trading system incorporated the protection of intellectual property (IP) rights. As one author put it, “the [IP] component of the WTO [World Trade Organization] Agreement represented a revolution in international intellectual property law.” This article provides a reality check 15 years after the fact with a particular focus on how the WTO performed in terms of settling IP disputes under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It compares conventional expectations associated with the creation of TRIPS and WTO dispute settlement to (i) the number and types of TRIPS disputes actually filed and decided, (ii) institutional and substantive decisions and interpretations reached by WTO panels and the Appellate Body in their application of the TRIPS agreement and, finally, (iii) the status of implementation of adverse WTO rulings under TRIPS.
The article offers a number of hypotheses that may explain these descriptive results centered on (i) the rather unique features of WTO dispute settlement, (ii) the TRIPS Agreement itself as compared to other trade agreements and (iii) an escalating cycle of IP-skepticism, due in no small part to the hard-line position taken by many IP industries themselves, and culminating in the 2001 Doha Declaration on TRIPS and Public Health which confirmed and slightly expanded TRIPS flexibilities in the context of the access to essential medicines debate.
The core message of this article is that based on 15 years of operation both the hopes and fears traditionally linked to TRIPS and WTO dispute settlement, not just in 1995 but to this day, were and continue to be largely exaggerated. TRIPS as conventionally portrayed by many is in this sense “the dog that barked but did not bite”. A caveat to this core message is, however, that it says something about the role and impact of formal dispute settlement under TRIPS, less about the broader changes brought about by the TRIPS agreement, in particular, sweeping (and often costly) legislative amendments in many developing countries, monitoring through the TRIPS Council and bargaining “in the shadow” of TRIPS both to weaken and to strengthen global IP protection (be it in the Doha Declaration on TRIPS and Public Health, certain preferential trade agreements, WIPO or the WHO).
Limitation of liability for maritime claims is a concept of respectable antiquity which is now deeply entrenched in the maritime industry. Under this concept, the shipowner is entitled to limit his liability for maritime claims up to a maximum sum regardless of the actual amount of the claims. The concept of limitation of liability has been adopted by many conventions ranging from those relating to the carriage of goods by sea, carriage of passengers and their luggage by sea, liability and compensation for pollution damage, to liability for the removal of wrecks. Each of these conventions has its own approach to limitation of liability. However, these particular liability regimes share the international arena with global limitation conventions such as the 1976 Convention on Limitation of Liability for Maritime Claims and the 1996 Protocol thereto.
This book approaches limitation of liability from an international perspective looking at a number of key conventions including the global limitation conventions, the conventions relating to the carriage of passengers and their luggage by sea (1974 Athens Convention relating to the Carriage of Passengers and Their Luggage by Sea and the 2002 Protocol thereto), conventions relating to liability and compensation for pollution damage (1969 International Convention on Civil Liability for Oil Pollution Damage and the 1992 Protocol thereto, the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea and the 2010 Protocol thereto, and the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage), as well as the 2007 Nairobi International Convention on the Removal of Wrecks.
Each chapter of this book sets out to analyze provisions in the conventions which have proved to be controversial and subject to debate by courts and authors, as well as the relationship between the limitation provisions in claim specific liability conventions and in the global limitation conventions. Particular attention is also given to the persons entitled to limit liability, ships in respect of which liability can be limited, claims subject to limitation, claims excepted from limitation, basis of liability (where applicable), loss of the right to limit, and the limits of liability.
The International Law Association (American Branch) will hold its biennial conference International Law Weekend - West, February 26, 2011, at Southwestern Law School. The theme is "2021: International Law Ten Years from Now." I noted the call for papers here. The schedule is here. Here's the idea:2021: International Law Ten Years From Now 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 and analyze their potential impacts in shaping the future of international law. Topics will include 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.
George A. Bermann (Columbia Univ. - Law) & Loukas Mistelis (Queen Mary, Univ. of London - Law) have published Mandatory Rules in International Arbitration (Juris Publishing 2011). The table of contents is available here. Here's the abstract:The notion of mandatory rules of law has long been of interest in private international law. It is no wonder that the subject has also emerged as something of a preoccupation of those who are involved in the world of international commercial arbitration. As both legal academics and international arbitrators, the editors of this book took a keen interest in how mandatory rules might “fit” into the international arbitration picture. To better understand the phenomenon of mandatory rules (and to gauge whether its importance might possibly even be exaggerated in the international arbitral context), the editors convened at Columbia Law School at a workshop under the joint auspices of Columbia and the School of International Arbitration at Queen Mary University of London. The workshop gathered a small number of leading academics and practitioners to consider whether the notion of mandatory rules of law has a place in international arbitration and, if so, how it might best be accommodated.
By extensively drawing on existing judicial practice, this chapter argues that the relationship between human rights and the immunities of States and IOs may be conceptualized as a tension among competing rules which can be worked out by means of interpretation, thus as an apparent conflict of norms open to the application of conflict avoidance techniques.
The chapter particularly advocates an ‘alternative-remedies test’ as a reasonable balance between the values and interests underlying the competing rules at stake. It considers that jus cogens may well play a role as a chiefly important element to be taken into account in this balancing process. The overall conclusion is that current and evolving practice in this field lends support to the emergence of a de facto human rights-based normative hierarchy in international law.
Attempted secessions (eg, Kosovo and Somaliland) and coups d'etat (eg. Madagascar and Honduras in 2009) prompt contestation over whether or not legal status is to be conferred on local exercises of de facto authority. International legal standing has traditionally been established by victory in a trial by ordeal: a region initially integral to an existing state successfully establishes itself as an independent sovereign unit only where its secession movement creates - usually by decisive victory in an armed struggle - facts on the ground that appear irreversible; an insurgent faction successfully establishes itself as a government where it overthrows an existing constitutional structure and secures - even if at bayonet-point - widespread popular acquiescence. Insofar as it is perceived as little more than an imprimatur for 'might makes right' at the local level, this 'effective control doctrine' is manifestly offensive to a rule-of-law sensibility.
Notwithstanding the international order's disposition to defer to the outcome of internal conflicts, alternative solutions are available where a state manifestly fails to embody the self-determination of the entirety of the territorial population, or where a government manifestly fails to represent the political community that the state encompasses. These alternative solutions, however, far from generating new generally-applicable doctrines, tend ineluctably to have an ad hoc character.
The conventional wisdom among international law scholars is that, once a rule of customary international law (CIL) becomes established, nations never have the unilateral right to withdraw from it. In a recent article published in the Yale Law Journal, "Withdrawing from International Custom," we termed this conventional wisdom the Mandatory View of CIL and distinguished it from a possible regime in which nations could opt out of at least some CIL rules through advance notice, something we termed a Default View of CIL. After considering the intellectual origins and functional desirability of the Mandatory View, as well as the extent to which withdrawal rights are available under treaties, we concluded that it was difficult to justify a complete ban on withdrawal from all rules of CIL. That article is the subject of a forthcoming symposium edition of the Duke Journal of Comparative and International Law, in which a variety of scholars raise important questions about our analysis and its implications. In this essay, we seek to advance the analysis set forth in Withdrawing by addressing four topics implicated by the symposium responses: the current state of CIL; the proper way to conceive of CIL and its relationship to treaties; how a shift away from the Mandatory View might occur in practice; and whether a shift to a Default View would make a meaningful difference in state practice. We also identify some issues that could benefit from additional research.
The latest issue of the Goettingen Journal of International Law (Vol. 2, no. 3, 2010) is out. Contents include:
Following recent denunciations of (withdrawals from) the ICSID Convention by Bolivia and Ecuador and the spate of academic commentary that followed, this paper considers denunciation from the ICSID Convention under the general international law of treaties. It is argued that self-contained interpretation of the provisions on denunciation of the ICSID Convention do not yield any compelling results, leaving contrary positions plausible. The general international law of treaties offers the decisive argument with respect to the effects of denunciation of the Convention, and helps determine whether ICSID jurisdiction can be established after the date of effective withdrawal from the Convention.
This chapter concurs with the contention that the prescriptions as to how power must be exercised at the domestic level (by virtue of major international human rights conventions) and the prohibition of certain political regimes (e.g. apartheid and fascist regimes ) already enshrined in international law before the end of the Cold War were subsequently supplemented by a new democratic rule. Indeed, the author of these lines believes, as is explained in the following paragraphs, that the practice since the end of the Cold War – and the accounts thereof in the legal scholarship – witnessed – and gave form to – a consolidation of a principle of democratic legitimacy. This development constituted a remarkable phenomenon, for it came to limit the classical constitutional autonomy of each state. In that sense, the years 1989-2010 can be hailed as an unprecedented epoch of international law during which domestic governance – understood here in a traditional way as the use of public authority at the domestic level through a central governmental authority – has been regulated by international law to an unprecedented extent, the latter going as far as to prescribe a given type of procedure to accede to power at the domestic level.
This chapter submits, however, that the rapid rise of non-democratic super-powers, growing security concerns at the international level, the 2007-2010 economic crisis as well as the inevitable instrumentalisation of democratisation policies of Western countries are currently cutting short the consolidation of such a principle of democratic legitimacy in international law. Contemporary practice shows signs of a return to realist and non-ideological foreign policies, threatening the centrality of democracy promotion in the foreign policies of most democratic states and the nascent consensus over the existence of international obligations about the democratic origin of power at the domestic level.
The following paragraphs start by exposing the possible rise (1) and fall (2) of the principle of democratic legitimacy in the practice of international law and the accounts thereof in the legal scholarship from 1989 to 2010 before seeking to critically appraise the lessons learnt from that period, especially regarding the ability of international law to regulate domestic governance (3).
Human rights law imposes upon States an absolute duty not to transfer an individual to another State where there are substantial grounds for believing he or she will be tortured or subjected to cruel, inhuman or degrading treatment. This protection, called non-refoulement, emanates from a theory of human rights that recognizes rights fulfillment requires States to protect those within their jurisdiction from rights violations perpetrated by third parties, including other States. Generally human rights law recognizes that resource constraints and/or competing rights restrict protection duties. But such limitations have not been recognized in the non-refoulement context with limited theorization as to the reason.
In recent years the obligation to provide non-refoulement protection has run into conflict with the State’s obligation to protect its public from aliens suspected of involvement in terrorism. Expulsion is the traditional tool available to States to mitigate the threat posed by dangerous aliens. With this tool removed, States often lack an alternative route to mitigate this threat, with criminal prosecution and indefinite detention pending deportation not available for various reasons. The result has been numerous cases where States have been forced either to release dangerous aliens back into their State, consistent with international law, or to find alternative means to deal with the threat in the shadow of human rights law.
This Article argues that human rights law should recognize the important clash of human rights duties that arises in these transfer situations: the State’s duty protect aliens from post-transfer mistreatment clashes with itsduty to protect members of the public from rights violations committed by dangerous private persons within society. Human rights law has in recent years recognized a duty on the part of States to take reasonable operational measures to protect the public from private person harms where the State knows or should know of the risk. In the case of dangerous aliens, these operational measures would presumably include expulsion. By depriving the State of the ability to expel dangerous aliens, non-refoulement protection places the human rights of dangerous aliens and the public into direct conflict.
Recognition of this rights competition is important for two reasons. First, for too long human rights scholars and bodies have dismissed the security consequences of non-refoulement as outside the concern of human rights. Acceptance that these security consequences themselves affect human rights requires consideration of how the law should address the conflict. Second, once a rights competition is accepted, human rights law prescribes a methodology for mediating between conflicting rights: balancing. A balancing approach would allow States a margin of appreciation to determine in the first instance how to choose between competing duties. The role of human rights apparatus, including national courts, international institutions and non-governmental organizations is to monitor this balance and to push States where the balance chosen appears over or under rights protective.
The article explores the genesis of constitutionalism in the science of international law during the interwar years and offers a genealogical sketch of the fate of the constitutional idea from the Second World War to the emergence of a post-reconstructive doctrine in the post-Cold War era. To account for the contemporary hydra-like renewal of constitutional parlance in international law, a series of converging factors, namely, fragmentation and deformalization, as well as the effects of empire and the illegitimacy of global governance on both domestic and international democratic grounds, are examined. The article goes on to argue that the terms of the debate, which shaped the foundational period of contemporary international law, today appear reversed in international legal scholarship and hints at how the field of international constitutionalism can be profitably enriched when set against the doctrinal background offered by the democratic debate in international law. The possibilities of this doctrinal cross-fertilization are shown by reference to three dimensions of emergence of the democratic principle, which, I argue, is the wind rose of international law.
Since the 9/11 attacks, States have been scrambling to find legal answers to difficult questions surrounding the detention of members of non-State groups. Four questions in particular have proven vexing to States: (1) who is subject to detention; (2) what process must the State provide to those detained; (3) when does the right of the State to detain terminate; and (4) what legal obligations do States have in connection with repatriating detainees at the end of the conflict?
Nearly nine years since 9/11 two factors have prevented development of the law on these questions. First, some States, international organizations, and NGOs continue to insist that existing law adequately answers these questions, hampering efforts to develop new law. Second, where there is agreement that new law is needed, disagreements about how to fill the gaps has limited progress.
This Article crystallizes the existing state of law to create the foundation for development of new law to fill existing gaps. The first objective is to demonstrate that existing law inadequately answers the questions posed. The Article begins by demonstrating why the law of non-international armed conflict, the generally applicable legal regime for armed conflicts between States and non-State groups, does not provide clear answers to these questions, creating a legal gap. The Article then explains why other legal regimes - international humanitarian law for international armed conflict, municipal law and international human rights law - also fail to fill these gaps at present.
The Article’s second objective is to identify areas of convergence on these four questions that may form the basis for future legal development. The resistance of many to the identification of gaps in the law is the legitimate fear that States will abuse these gaps to engage in policies inconsistent with the spirit of international law. Immediate work on development of new law may ameliorate these fears. The Article also suggests additional considerations that we believe should influence future lawmaking. While a new treaty regime may be the ideal vehicle for development of new law, the Article recognizes that agreement on a new treaty is unlikely, and proposes an agreement on common principles by like-minded States as an interim step.
When the ICJ on 22 July 2010 finally handed down the much-awaited opinion on Kosov's declaration of independence the reaction was mostly disappointment. In fact, the question referred by the UN General Assembly to the ICJ in 2008 had the ingredients to pave the way for a stock-taking on some of the most controversial questions of modern international law, first of all on the meaning of self-determination in the 21th century. Some hoped that the ICJ would decline jurisdiction for this case, others hoped to receive all-encompassing guidance on the many thorny subjects the question touched upon. The ICJ sought for a compromise: It declared that it had jurisdiction but it shied away from addressing the substance of the question posed. It appears to be doubtful whether the ICJ, acting this way, really has come up to its "duty to cooperate" within the UN system. In fact, the line of arguments presented by the ICJ is too shaky and as a consequence status and function of the ICJ end up damaged from this proceeding. On the other hand, the ICJ deserves praise for having handled a thoroughly political issue with great sense of responsibility. It is argued here, that notwithstanding all the ambiguities surrounding the distinction between the legal and the political, this distinction still matters - judges should not be asked to do the undone jobs of politicians.
