- Terry Nardin, Middle-Ground Ethics: Can One Be Politically Realistic Without Being a Political Realist?
- Henry Shue, Face Reality? After You!—A Call for Leadership on Climate Change
- Leif Wenar, Clean Trade in Natural Resources
- Allen Buchanan & Robert O. Keohane, Precommitment Regimes for Intervention: Supplementing the Security Council
- Steve Vanderheiden, Globalizing Responsibility for Climate Change
Wednesday, June 15, 2011
Tzanakopoulos: Domestic Courts in International Law: The International Judicial Function of National Courts
As the title suggests, this paper does not deal with 'international law in domestic courts' but rather with 'domestic courts in international law'. It seeks to ascertain whether domestic courts are assigned an international judicial function by international law, and whether and to what extent they are in fact assuming and exercising that function. The paper attempts to define the concept of an ‘international judicial function’ and argues that, because of the peculiar ‘directionality’ of a great many international obligations (which require implementation within the domestic jurisdiction), domestic courts are the first port of call and the last line of defense for the interpretation and application of international law. However, as organs of States, courts may engage the international responsibility of the State if their conduct results in the breach of an international obligation. This is why the exercise of the international judicial function of domestic courts is supervised by States, either through the submission of disputes to international courts, or, more usually, through decentralized reactions.
Tuesday, June 14, 2011
Elsig & Pollack: Agents, Trustees, and International Courts: The Politics of Judicial Appointment at the World Trade Organization
Scholars have increasingly theorized, and debated, the decision by states to create and delegate authority to international courts, as well as the subsequent autonomy and behavior of those courts, with principal-agent and trusteeship models disagreeing on the nature and extent of states’ influence on international judges. This article formulates and tests a set of principal-agent hypotheses about the ways in which, and the conditions under which, member states are able use their powers of judicial nomination and appointment to influence the endogenous preferences of international judges. The empirical analysis surveys the record of all judicial appointments to the Appellate Body (AB) of the World Trade Organization over a 15-year period. We present a view of an AB appointment process that, far from representing a pure search for expertise, is deeply politicized and offers member-state principals opportunities to influence AB members ex ante and possibly ex post. We further demonstrate that the AB nomination process has become progressively more politicized over time as member states, responding to earlier and controversial AB decisions, became far more concerned about judicial activism and more interested in the substantive opinions of AB candidates, systematically championing candidates whose views on key issues most closely approached their own, and opposing candidates perceived to be activist or biased against their substantive preferences. Although specific to the WTO, our theory and findings have implications for the judicial politics of a large variety of global and regional international courts and tribunals.
Can international legitimacy operate even in a deformed balance of power, and when there is only one dominant state? Conventionally, hegemony has been perceived as a threat to international society. But how then is international order to be maintained, if this still requires a managerial role on the part of the great powers? IR theory has not taken that problem sufficiently seriously. This study makes a sharp distinction between primacy, denoting merely a form of material power, and hegemony, understood as a legitimate practice, and as giving rise to a form of social power. Adopting an English School approach, the author suggests hegemony be considered as one potential institution of international society, and hence as one possible mechanism of international order. The book reviews some relevant historical cases (the Concert of Europe, Pax Britannica and Pax Americana) and argues that, instead of one model of hegemony, these represent several different variants: importantly, each displays its own distinctive legitimacy dynamics. Once these are appreciated, they can help us identify the possible institutional forms of hegemony in contemporary international society. This is done through three cases, examining in turn US policy on the UN Security Council, in East Asia, and on climate change. The overall argument challenges the limited post-Cold War debate about primacy, and the equally simplistic projections about the future distribution of power to which it gives rise. In doing so, it offers a major re-thinking of the concept of hegemony in international relations.
- Jan Schokkaert & Yvon Heckseher, Investment Contracts between Sovereign States and Private Companies—Link between BITs and State Contracts
- Elena Blanco, Tran Anh Dung & Umut Turksen, Evolving to Perfection? Enforcement of International Arbitral Awards in Vietnam
- Mohamed Hedi Bchir, Hakim Ben Hammouda & Kaouther Abderrahim, Exports Sophistication and Trade Potential in the Middle East and North Africa (MENA) Region
- Badar Alam Iqbal, Doha Development Round: How long will it be in the Doldrums?
- Gu Minkang & Yan Rong, The Free Trade Agreement between China and Korea—What should be included in the FTA?
- Julien Burda, A New Step Towards a Single and Common Definition of an Investment?—Comments on the Romak versus Uzbekistan Decision
- C. Chattcrjee, Suspicion of Bias versus Actual Bias in Arbitration: The Gallo Arbitration
- Anna De Luca, Note on the Yearbook on International Investment Law & Policy 2008-2009: Foreign Investment Promotion and Protection vs. Host States' Regulatory Powers
- James D. Fry, Non-Participation in the International Court of Justice Revisited: Change or Plus Ça Change?
- Moshe Cohen-Eliya & Gila Stopler, Probability Thresholds as Deontological Constraints in Global Constitutionalism
- David M. Ong, Transnational Investment Law and Environmental Protection: Russian State Intervention in the Sakhalin II Project – The Empire Strikes Back?
- Shawkat Alam, Pundarik Mukhopadhaya & David Randle, The General Agreement on Trade in Services (GATS), Water, and Human Rights from the Perspective of Developing Countries
- Solomon A. Dersso, The Role and Place of Human Rights in the Mandate and Works of the Peace and Security Council of the AU: An Appraisal
- Pádraig McAuliffe, UN Peace-Building, Transitional Justice and the Rule of Law in East Timor: The Limits of Institutional Responses to Political Questions
- James A. Green, Questioning the Peremptory Status of the Prohibition of the Use of Force
- Cyra Akila Choudhury, Exporting Subjects: Globalizing Family Law Progress through International Human Rights
- Efraim Chalamish, Do Treaties Matter? On Effectiveness and International Economic Law
Santos: Die Reform des Sicherheitsrates der Vereinten Nationen und ihre Auswirkungen auf die internationale Ordnung
Der UN-Sicherheitsrat ist das mächtigste Organ der Vereinten Nationen, er trägt die Hauptverantwortung für die Wahrung des Weltfriedens und der internationalen Sicherheit. Seine Zusammensetzung entspricht aber noch immer den Machtverhältnissen der Nachkriegszeit. Daher wird schon seit Jahrzehnten in Wissenschaft und Politik über eine institutionelle Reform des wichtigsten UN-Gremiums diskutiert. Die Autorin liefert die erste umfassende Untersuchung zu diesem Themenfeld.
Die Studie verdeutlicht zunächst die Reformbedürftigkeit des Weltsicherheitsrates. Dann werden die verschiedenen Modelle für eine Neugestaltung und Umstrukturierung eingehend analysiert. Im Mittelpunkt der Betrachtung stehen die Auswirkungen der geplanten Reform auf die internationale Ordnung und die globale Sicherheitsarchitektur.
Die Neuerscheinung richtet sich nicht nur an Völkerrechtler und Politikwissenschaftler, sondern auch an Diplomaten und politische Entscheidungsträger.
Monday, June 13, 2011
- Emmanuel Laryea, Why Ghana Should Implement Certain International Legal Instruments Relating to International Sale of Goods Transactions
- Chilenye Nwapi, International Treaties in Nigerian and Canadian Courts
- Michael Blakeney & Getachew Mengistie, Intellectual Property Policy Formulation in LDCs in Sub-Saharan Africa
- Takele Soboka Bulto, Judicial Referral of Constitutional Disputes in Ethiopia: From Practice to Theory
- Ajepe Taiwo Shehu, Constituency Control of Legislators: Lessons from Nigeria
- Iosif Kovras, The UN's Moral Responsibility in the ‘Spill-Over’ of Genocide from Rwanda to the Democratic Republic of the Congo
The legal obligations of a state are overwhelmingly based on its consent to be bound. This commitment to consent preserves the power of states, but also creates a serious problem for the international system. Because any state can object to any proposed rule of international law, only changes that benefit every single affected state can be adopted – creating a cumbersome status quo bias. This Article argues that our existing commitment to consent is excessive and that better outcomes would result from greater use of non-consensual forms of international law. International law has developed a variety of ways to live with the consent problem, including the use of transfer payments, customary international law, and the United Nations Security Council. None of these, however, provide a sufficient counterweight to the consent problem. There are also strategies employed to work around the consent problem, mostly through the use of international organizations and tribunals capable of generating soft law. These soft law strategies are helpful, but insufficiently so. We could achieve better results within the system if these forms of soft law were used more extensively and accepted more broadly.
- Andreas Schloenhardt & Mark Loong, Return and Reintegration of Human Trafficking Victims from Australia
- Violeta Moreno-Lax, Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea
- Lauren Groth, Engendering Protection: an Analysis of the 2009 Kampala Convention and its Provisions for Internally Displaced Women
- Pia Zambelli, Problematic Trends in the Analysis of State Protection and Article 1F(a) Exclusion in Canadian Refugee Law
This essay argues that sovereignty should be conceptualized as a trusteeship not only toward one’s own citizens but also toward humanity at large. Accordingly, sovereigns should be required to take into account other-regarding considerations when forming national policies that may have an effect beyond their national jurisdiction even absent specific treaty obligations. The essay suggests that the concept of sovereignty, crystallized at a time when distances were large and self-sufficiency was the aspiration must assume a new face in a densely-populated and deeply integrated world. The traditional view of sovereigns under both constitutional and international law regards them as Janus-faced: public toward their own citizens but private on the outside (vis-à-vis all others). This vision is informed by the assumption of a perfect fit between the sovereign and the affected stakeholders who are its citizens. This traditional view of sovereignty yields inefficient, inequitable and undemocratic consequences. After grounding the trustee sovereignty concept on three distinct bases – the sovereign’s power of exclusion, the idea of human rights and the right to democratic participation – the essay elaborates on the general implications of the theory. It identifies the minimal normative and procedural other-regarding obligations that arise out of this concept and suggests that these minimal obligations are already embedded in several doctrines of international law that delimit the rights of sovereigns. The trustee sovereignty concept can explain the evolution of these doctrines, and it can also inspire the rise of new specific obligations.
Cottier & Delimatsis: The Prospects of International Trade Regulation: From Fragmentation to Coherence
- Thomas Cottier, Panagiotis Delimatsis & Katja Gehne, The fragmentation versus coherence discourse in international law and its relevance for trade regulation
- Klaus Armingeon, Karolina Milewicz, Simone Peter & Anne Peters, The constitutionalisation of international trade law
- Yves Bonzon, Manfred Elsig, Marina Foltea, Thomas Messerli & Andreas Ziegler, Reflections on modes of decision-making in the WTO
- Richard Baldwin & Theresa Carpenter, Regionalism - moving from fragmentation towards coherence
- Philipp Aerni, Baris Karapinar & Christian Häberli, Reframing sustainable agriculture
- Thomas Cottier, Garba Malumfashi, Sofya Matteotti-Berkutova, Olga Nartova, Joëlle De Sépibus & Sadeq Z. Bigdeli, Energy in WTO law and policy
- Panagiotis Delimatsis, Nicolas Diebold, Martín Molinuevo, Marion Panizzon & Pierre Sauvé, Developing trade rules for services: a case of fragmented coherence?
- Susette Biber-Klemm, Michael Burkard, Thomas Cottier, Sufian Jusoh & Michelangelo Temmerman, Challenges of biotechnology in international trade regulation
- Barnali Choudhury, Katja Gehne, Simone Heri, Franziska Humbert, Christine Kaufmann & Krista Nadakavukaren Schefer, A call for a WTO ministerial decision on trade and human rights
- Mira Burri, Christoph Beat Graber & Thomas Steiner, The protection and promotion of cultural diversity in a digital networked environment - mapping possible advances to coherence
- Ernst Baltensperger & Nils Herger, Development and stability in the nexus between trade and finance
- Bertram Boie, Julien Chaisse & Philippe Gugler, International investment framework - the regulatory fragmentation challenge in a changing world economy
- Hannah Bargawi, Elva Bova, Benno Ferrarini & Susan Newman, Low-income countries and commodity price volatility
- Bernard Hanotiau, International Arbitration in a Global Economy: The Challenges of the Future
- Lucy Greenwood, Does Bifurcation Really Promote Efficiency?
- Mauro Rubino Sammartano, Costs Awards in Arbitration
- José Rosell, Arbitration Costs as Relief and/or Damages
- Devika Khanna, Dallah: The Supreme Court’s Positively Pro-Arbitration “No” to Enforcement
- Nora Krausz, Waiver of Appeal to the Swiss Federal Tribunal: Recent Evolution of the Case Law and Compatibility with ECHR, Article 6
- Louise Reilly, Harmonisation of Irish Arbitration Law: Arbitration Act 2010
- Ursula Cassani, Les avoirs mal acquis, avant et après la chute du "potentat"
- Xavier-Baptiste Ruedin, Aliens' and Asylum Seekers' Detention under Article 5(1)(f) ECHR
- Hisashi Owada, International Terrorism and the Rule of Law
- Susan Thomson & Rosemary Nagy, Law, Power and Justice: What Legalism Fails to Address in the Functioning of Rwanda’s Gacaca Courts
- Anonymous, Against the Grain: Pursuing a Transitional Justice Agenda in Postwar Sri Lanka
- Victor Peskin & Mieczysław P. Boduszyński, Balancing International Justice in the Balkans: Surrogate Enforcers, Uncertain Transitions and the Road to Europe
- Simon Robins, Towards Victim-Centred Transitional Justice: Understanding the Needs of Families of the Disappeared in Postconflict Nepal
- Marcos Zunino, Releasing Transitional Justice from the Technical Asylum: Judicial Reform in Guatemala seen through Technē and Phronēsis
- Rebecca Saunders, Questionable Associations: The Role of Forgiveness in Transitional Justice
- Randle C. DeFalco, Accounting for Famine at the Extraordinary Chambers in the Courts of Cambodia: The Crimes against Humanity of Extermination, Inhumane Acts and Persecution
Least ambitiously, this paper tries to capture the ethos of international criminal law. More ambitiously, it argues that international criminal law is, or can profitably be seen as, an ethos, rather than a body of law. In this telling, international criminal law, despite its name, emerges as an ethical-administrative enterprise rather than a legal one. If placed alongside global administrative law, international criminal law appears as alegal rather than illegal, as ignoring the principle of legality, say, rather than violating it, so that to criticize international criminal law for its illegality would be like faulting apples for not producing orange juice, and oranges for not making apple pie.
Sunday, June 12, 2011
- Bas de Gaay Fortman, Minority Rights: A Major Misconception?
- Olivier De Schutter, The Right of Everyone to Enjoy the Benefits of Scientific Progress and the Right to Food: From Conflict to Complementarity
- Lanse Minkler & Shawna Sweeney, On the Indivisibility and Interdependence of Basic Rights in Developing Countries
- Inela Selimović, A Note from Bosnia and Herzegovina: Leading a Displaced Life
- Djordje Stefanovic & Neophytos Loizides, The Way Home: Peaceful Return of Victims of Ethnic Cleansing
- Julie M. Mazzei, Finding Shame in Truth: The Importance of Public Engagement in Truth Commissions
- Simeon O. Ilesanmi, Bearing Witness: Poetry, Prison Discourse, and Communal Struggles in Human Rights Education
- Monisha Bajaj, Human Rights Education: Ideology, Location, and Approaches
This book explores how domestic courts contribute to the maintenance of the rule of international law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book will be on judicial control of exercise of public powers by states. Key cases that will be reviewed in this book, and that will provide empirical material for the main propositions, include Hamdan, in which the US Supreme Court reviewed detention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah, in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law, and the Narmada case, in which the Indian Supreme Court reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107).
This book primarily explores what it is that international law requires, expects, or aspires that domestic courts do, and against this backdrop of what international law requires it seeks to map patterns of domestic practice in the actual or possible application of international law, and to determine what such patterns mean for the protection of the rule of international law.