Saturday, September 3, 2011
Petty: Protecting Children from Cyber Crime: The Twentieth Session of the UN Commission on Crime Prevention and Criminal Justice
Friday, September 2, 2011
By virtue of other international adjudicatory bodies or the role of domestic courts, the Permanent Court of International Justice (hereafter PCIJ) was far from being entrusted of any sort of monopoly on the application of international law. It is fair to say that the PCIJ operated in a multi-judiciary world made of domestic and international judicial bodies equally dealing with questions of international law. In such a context, this paper examines some of the dynamics of the multi-judiciary world of the first half of the 20th century. It particularly zeroes in on the interactions of the Permanent Court of International Justice with other judicial bodies, in particular domestic judges. The first section offers a brief overview of the PCIJ’s claim that it is a court of the international legal order and its use of the case-law of other international adjudicatory bodies. The second section examines in further detail the relationship between the PCIJ and domestic courts, contrasting it with the Court’s self-proclaimed international character. On that occasion, it will be particularly shown that, while, on the surface, the Court stopped short of engaging with domestic courts, paying lip-service to their case-law, the PCIJ was inclined to freely interpret domestic law and actually operate as a municipal court itself. A few concluding and critical remarks are formulated, drawing on some analogies with the current dynamics in the practice of the International Court of Justice (hereafter the ICJ).
Over the past two decades, there has been a drive to reduce complex concepts into simple numbers. Corruption, rule of law, human rights, and more have all been reduced to quantitative indicators. Under the theory that what gets measured gets done, international law has begun relying on these tools to operationalize global norms and assess compliance. In particular, private regulatory bodies are using indicators to claim scientific authority as they set global standards and shape domestic law. Yet legal scholarship has been largely silent about the implications of these statistical tools for governance.
In this Article, I analyze the prevalence of quantitative indicators as a regulatory tool, identify the limits of using these techniques to inform decision making, and offer recommendations on how to increase their legitimacy in domestic and global governance. The appeal of indicators lies in their ability to translate social phenomena into a numerical representation that is transparent, easy to understand, and comparable across actors. Yet I argue that there are potential costs of incorporating indicators in regulation - specifically, the promotion of box-ticking and superficial compliance, the dominance of technical experts over decision making, and the distortion of public values when converted to numbers. My analysis draws from an empirical study of the Global Reporting Initiative (GRI), based on personal interviews and participation in a GRI-certified training program. The GRI is a private transnational body that has produced the leading standard for sustainability reporting, used by more than three-quarters of the Global Fortune 250 companies. Its guidelines include 79 indicators for corporations to report on their social, environmental, and economic performance. Based on this study, I contend that the use of indicators can be fraught with problems, which are often overlooked due to the authoritative nature of numbers. In order to maximize their effectiveness, I recommend that government agencies and private actors design meaningful indicators, avoid data overload, require third-party verification, and expand participation by citizens and a broad group of experts.
The law of responsibility and the law of collective security are structured as parallel bodies of law. However, the Articles on the Responsibility of States and the controversial new Draft Articles on the Responsibility of International Organizations, are routinely arising in collective security situations. This Article explores how the law of responsibility applies to the Security Council and UN member states, and why it is arising in regime conflicts involving the Security Council. The Article begins by analyzing three common types of regime conflicts confronting the Security Council: those arising from embedded conflicts, strategic inconsistency, and separate legal personality. The Article then examines how the rules of responsibility are applied where human rights and collective security collide, and why the principles of responsibility factor into both the definition of aggression and shared jurisdiction of the Security Council and International Criminal Court over this crime. Finally, this Article discusses the role of the law of responsibility in important recent decisions including the Kadi, Al-Jedda, Behrami, and Saramati cases, and concludes by arguing that the law of responsibility may play a constitution-like function.
This paper for the launching of the journal Transnational Environmental Law first sets forth a concept of transnational environmental law that encompasses but is broader than international environmental law. When we speak of transnational law and legal process, we are concerned with the migration and impact of legal norms, rules and models across borders. Such migration can occur through the mediation of international law and institutions, or through the impact of unilateral legal developments in one jurisdiction that affect behavior in others. The paper then discusses the importance of assessing transnational environmental law in light of the constraints facing consent-based international environmental law, examines the tradeoffs between transnational and international environmental law from the perspective of legitimacy, and concludes by discussing the important but delicate relation of international law to transnational environmental law as both a check and a consolidator. International law should guard against the self-serving unilateral use of transnational environmental law, but it should do so in a way that preserves (and does not shut off) the dynamic, responsive character of the transnational environmental law process. Otherwise international law itself will be delegitimized.
Thursday, September 1, 2011
This paper examines the application of human rights law to corporations. It focuses on the six-year mandate of John Ruggie as the special representative of the U.N. Secretary-General on human rights and corporations, which culminated in June 2011 with the endorsement by the U.N. Human Rights Council of his Guiding Principles on Business and Human Rights. Although the Guiding Principles are not, and do not purport to be, legally binding in themselves, together with Ruggie’s earlier work they shed light on several contested legal issues, including (a) whether human rights law directly applies to corporations; (b) the standard for corporate complicity in state violations of human rights law; and (c) whether states’ duties to protect against corporate misconduct extend extraterritorially. Clarification of these issues may influence whether corporations are subject to legal remedies for violating human rights law, including under the Alien Tort Statute, which allows aliens to seek monetary damages for torts committed in violation of international law. Ruggie’s work has already been cited in ATS litigation.
- Lorenz Langer, Menetekel oder Musterlösung: Das amerikanische Ausländerrecht und die Umstzung der schweizerischen Auschaffungsinitiative
- Peter Hilpold, Die Schutzverantwortung im Recht der Vereinten Nationen (Responsibility to Protect) - auf dem Weg zur Etablierung eines umstrittenen Konzepts
- Frank Vischer, Die Stellung des Anleihensgläubigers bei Zahlungsunähigkeit des Schuldnerstaates
- Ingeborg Schwenzer & Alain Hosang, Menschenrechtsverletzung - Schadenersatz vor Schweizer Gerichten
This book conceptualizes the accountability deficit of missions engaged in the international administration of territories. In so doing, a public-law approach is adopted. The book explores to what extent it is warranted to perceive these missions as public entities exercising public power rather than international organizations merely engaged in extensive peacekeeping and, if such a paradigm shift is accepted, how public law influences our understanding of the accountability deficit. The linkage is explored between the rule of law, judicial review and an independent judiciary as cornerstone-principles of public law on the one hand and the main institutional and conceptual characteristics of international territorial administration on the other hand. The author concludes that insufficient regard for public law principles is at the core of the accountability deficit and that public law should play a role in addressing this deficit. This book is of interest to both international and constitutional lawyers, as well as practitioners engaged with international organizations and their subsidiary field missions.
- E. Domínguez Redondo, Rethinking the Legal Foundations of Control in International Human Rights Law – The Case of Special Procedures
- R. Freedman, New Mechanisms of the UN Human Rights Council
- J. Kratochvíl, The Inflation of the Margin of Appreciation by the European Court of Human Rights
- M. Ssenyonjo, Analysing the Economic, Social and Cultural Rights Jurisprudence of the African Commission: 30 Years Since the Adoption of the African Charter
Wednesday, August 31, 2011
What will happen when the Kyoto Protocol's first commitment period expires at the end of next year? This paper for the Harvard Project on International Climate Agreements analyzes the options going forward, including adoption of a legally-binding second commitment period, a "political" second commitment period, or no new commitment period. It considers the legal implications of a gap between the end of Kyoto's first commitment period and the adoption of a new legal regime to limit emissions, the prospects for the Clean Development Mechanism in the absence of a second Kyoto commitment period, and the relationship between the Kyoto Protocol negotiations and the emerging regime under the Cancun Agreements. It concludes that a transitional regime, involving a second commitment period that is politically but not legally binding, represents a possible middle ground that could complement efforts under the Cancun Agreements to develop a flexible, evolutionary framework of climate governance.
- K.J. Holsti, Exceptionalism in American foreign policy: Is it exceptional?
- Stephanie Lawson & Seiko Tannaka, War memories and Japan’s ‘normalization’ as an international actor: A critical analysis
- Bhubhindar Singh, Peacekeeping in Japanese security policy: International–domestic contexts interaction
- Frazer Egerton, Alienation and its discontents
- Piki Ish-Shalom, Defining by naming: Israeli civic warring over the Second Lebanon War
- Manfred Elsig, Principal–agent theory and the World Trade Organization: Complex agency and ‘missing delegation’
- Mathias Koenig-Archibugi, Is global democracy possible?
- Maja Zehfuss, Targeting: Precision and the production of ethics
- Ariel Ilan Roth, Structure and stability reconsidered
Discussion of the governance of global trade and the multilateral trading system is too often dominated by developed-country scholars and opinion-makers, with inadequate attention given to developing country perspectives. Making Global Trade Governance Work for Development gathers a diversity of developing country views on how to improve the governance of global trade and the WTO to better advance sustainable development and respond to the needs of developing countries. With contributions by senior scholars, commentators and practitioners, the essays combine new, empirically-grounded research with practical insights about the trade policy-making process. They consider the specific governance issues of interest to developing countries and acknowledge the changing dynamics in the global economy and in trade decision-making.
The past two decades have witnessed the rapid proliferation of private military and security companies (PMSCs) in armed conflicts around the world, with PMSCs participating in, for example, offensive combat, prisoner interrogation and the provision of advice and training. The extensive outsourcing of military and security activities has challenged conventional conceptions of the state as the primary holder of coercive power and raised concerns about the reduction in state control over the use of violence. Hannah Tonkin critically analyses the international obligations on three key states – the hiring state, the home state and the host state of a PMSC – and identifies the circumstances in which PMSC misconduct may give rise to state responsibility. This analysis will facilitate the assessment of state responsibility in cases of PMSC misconduct and set standards to guide states in developing their domestic laws and policies on private security.
Tuesday, August 30, 2011
Over the past decade, there has been an explosion of interest, both among international lawyers and international relations scholars, in the legitimacy of international institutions. The issue of international legitimacy raises many important questions. Conceptually, what do we mean by “legitimacy” and what is its relation to other concepts such as legality, authority, obedience, power, self-interest, morality and justice? Normatively, what standards should we use to assess the legitimacy of international institutions? Descriptively, what standards do different actors (government officials, international bureaucrats, civil society groups, and business) actually use in assessing the legitimacy of international institutions? Finally, causally, what factors explain the creation of institutions with normative legitimacy, what factors explain why institutions are accepted as legitimate, and how much practical difference do beliefs about legitimacy make -- for example, for the effectiveness and stability of an institution? This paper surveys the international law and international relations literatures on these issues.
This chapter zeroes in on customary international law and examines the role played by this specific source of law in the development of international investment law. After a few considerations on the early phase of development of an international investment protection regime and the search for a customary international protection of aliens, this chapter shows how the maturation of investment protection has been achieved through treatification and a move away from customary law. It then turns to the paradox of the theory of the sources of investment law and demonstrates how the completion of treatification through bilateral investment treaties (hereafter BITs) has generated a return to customary international. It subsequently ventures into a few general critical remarks about the rebirth of customary international law from the standpoint of the theory of the sources of international law.
- Issues and Prospects
- Menakhem Ben-Yami, Marine Farming
- Ocean Governance
- David Dzidzornu, Ocean Policy in Africa and Treaty Aspects of Marine Fisheries Exploitation, Management, and Environmental Protection
- Francesca Galea, Legal Regime for the Exploration and Exploitation of Offshore Renewable Energy
- Living Resources
- Keith Reid, Conserving Antarctica from the Bottom Up
- Environment and Coastal Management
- Walter Patricio MacCormack, Lucas Adolfo Mauro Ruberto, Cristian Leopoldo Vodopivez, Antonio Curtosi & Emilien Pelletie, The Impact of Human Activity on Antarctic Coastal Areas
- Elizabeth H. Shadwick & Helmuth Thomas, Carbon Dioxide in the Coastal Ocean
- Maritime Transport and Security
- Ryan O'Leary, Lost in the Ice
- Special Theme: National Studies of the Law Applicable on the Continental Shelf and in the EEZ
- Moira L. McConnell, Observations on the Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: A Comparative View
- Eduard Somers & Frank Maes, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The Belgian Perspective
- Denis Roy, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The Canadian Perspective
- Wolfgang Wurmnest, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The German Perspective
- Tullio Treves & Irini Papanicolopulu, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The Italian Perspective
- Souichirou Kozuka & Hideyuki Nakamura, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The Japanese Perspective
- Christiaan P. Verwer, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The Netherlands Perspective
- Tore Henriksen, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The Norwegian Perspective
- Maria Dragun-Gertner, Zuzanna Peplowska & Dorota Pyć, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The Polish Perspective
- Luís de Lima Pinheiro, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The Portuguese Perspective
- Rachael E. Salcido, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The United States Perspective
- Angelina Jaffé, The Law Applicable on the Continental Shelf and in the Exclusive Economic Zone: The Venezuelan Perspective
The article analyses the European Court of Human Rights’ recent judgments in Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom. The former is set to become the leading Strasbourg authority on the extraterritorial application of the ECHR; the latter presents significant developments with regard to issues such as the dual attribution of conduct to states and to international organizations, norm conflict, the relationship between the ECHR and general international law, and the ability or inability of UN Security Council decisions to displace human rights treaties by virtue of Article 103 of the UN Charter. The article critically examines the reasoning behind the two judgments, as well as their broad policy implications regarding ECHR member state action abroad and their implementation of various Security Council measures.
- Egon Sohmen Memorial Conference: The Political Economy of International Financial Institutions
- Christopher Kilby, Informal influence in the Asian Development Bank
- Axel Michaelowa & Katharina Michaelowa, Climate business for poverty reduction? The role of the World Bank
- Silvia Marchesi & Emanuela Sirtori, Is two better than one? The effects of IMF and World Bank interaction on growth
- Christoph Moser & Jan-Egbert Sturm, Explaining IMF lending decisions after the Cold War
- J. Lawrence Broz, The United States Congress and IMF financing, 1944–2009
- James Raymond Vreeland, Foreign aid and global governance: Buying Bretton Woods – the Swiss-bloc case
- Joseph P. Joyce & Raul Razo-Garcia, Reserves, quotas and the demand for international liquidity
- Ruben Atoyan & Patrick Conway, Projecting macroeconomic outcomes: Evidence from the IMF
- Allan H. Meltzer, The IMF returns
Monday, August 29, 2011
- Alan Tsang, Transnational Rules on Interim Measures in International Courts and Arbitrations
- Matthias Scherer, Court Proceedings in Violation of an Arbitration Agreement: Arbitral Jurisdiction to Issue Anti-Suit Injunction and Award Damages for Breach of the Arbitration Agreement
- William Lawton Kirtley, Court-Ordered Discovery in the United States Under 28 U.S.C. § 1782 for Use in Foreign and International Arbitrations: Its Evolution, Current Trends, Strategic Use and Dangers
- Michael Waldner, Die internationale Zuständigkeit der Schweizerischen Gerichte zur Beurteilung von Klagen der Opfer nuklearer Zwischenfälle
- Schwerpunktheft SVIR Jahrestagung: Der Lissabon-Vertrag und die Schweiz-Referate des Völkerrechtstages vom 17. September 2010
- Jean-Paul Jacqué, Les changements apportés par le traité de Lisbonne
- Christine Kaddous, Les changements apportés par le traité des Lisbonne en matière d’action extérieure
- Roland Bieber, Die Demokratisierung der EU
- Michael Reiterer, Der Vertrag von Lissabon : Neue Institutionen und die Stärkung des Europäischen Parlaments
- Andreas Auer, Erfahrungen und Perspektiven der schweizerischen Demokratie mit der EU und der EU mit der direkten Demokratie
- Thomas Pfisterer, Aspekte von Europapolitik und Föderalismus
Call for Papers
Melbourne Journal of International Law
The Editors of the Melbourne Journal of International Law (‘MJIL’) invite submissions on areas of interest in international law for their 13th volume. Issue 13(1) will be published in June 2012, and Issue 13(2) will be published in November 2012.
MJIL, Australia’s premier generalist international law journal, is a peer-reviewed academic journal run through the Melbourne Law School at the University of Melbourne. MJIL’s objective is to facilitate scholarly research and critical discussion of private and public international law issues.
MJIL publishes articles, commentaries, case notes and book reviews. Articles should be in the vicinity of 10 000 to 20 000 words in length and be an original and detailed contribution to international law scholarship. Commentaries explore recent developments in a specific field of international law and their practical applications, and should be between 5000 and 8000 words in length.
All articles, case notes, commentaries and review essays published in MJIL are subjected to a double-blind refereeing process, involving at least two specialists in the field. Once accepted for publication, submissions will then be edited for compliance with the Australian Guide to Legal Citation. Authors have an opportunity to review the final version of the piece prior to publication. Our publication policy can be accessed here.
All submissions should be sent to email@example.com in Word format, together with a signed publication policy.
The submission deadline for 13(1) is 31 January 2012.
The submissions deadline for 13(2) is 2 July 2012.
- Nicolas Lamp, Conceptions of War and Paradigms of Compliance: The ‘New War’ Challenge to International Humanitarian Law
- Andrew Garwood-Gowers, Israel’s Airstrike on Syria’s Al-Kibar Facility: A Test Case for the Doctrine of Pre-emptive Self-Defence?
- Hin-Yan Liu, Mercenaries in Libya: Ramifications of the Treatment of ‘Armed Mercenary Personnel’ under the Arms Embargo for Private Military Company Contractors
- Zsuzsanna Deen-Racsmány, The Amended UN Model Memorandum of Understanding: A New Incentive for States to Discipline and Prosecute Military Members of National Peacekeeping Contingents?
- Mba Chidi Nmaju, The Role of Judicial Institutions in the Restoration of Post-Conflict Societies: The Cases of Rwanda and Sierra Leone
- Michael Ramsden, Targeted Killings and International Human Rights Law: The Case of Anwar Al-Awlaki
Public International Law
- Mahnoush H. Arsanjani (Formerly, Director, Codification Division, United Nations Office of Legal Affairs), Inaugural Conference: The United Nations and International Law-Making
- Serge Sur (Univ. Panthéon-Assas), General Course: The Creativity of International Law
- Loretta Ortiz Ahlf (Iberoamericano Univ.), Human Rights of Undocumented Migrants
- Nassib G. Ziadé (Formerly, Deputy Secretary-General, International Centre for Settlement of Investment Disputes), The Independence of Arbitral Bodies Established in the Framework of International Organizations
- Yee Sienho (Wuhan Univ. Institute of International Law), Jus Cogens at the International Court of Justice
- Abdulqawi Yusuf (Judge, International Court of Justice), The African Union and International Law
- Christophe Swinarski (Formerly, Legal Counsel, ICRC), Effects on Individuals of Protection Systems under International Law
- Masaharu Yanagihara (Kyushu Univ.), Significance of the History of the Law of Nations in Europe and East Asia
Private International Law
- Didier Opertti Badán (Catholic Univ. of Montevideo), Inaugural Conference: Conflicts of Laws and Uniform Law In Contemporary Private International Law: Dilemma or Convergence?
- Jürgen Basedow (Director, Max Planck Institute for Comparative and International Private Law), General Course: The Law of the Open Society
- Nerina Boschiero (Univ. of Milan), The Private International Law Dimension of the Security Council's Economic Sanctions
- Chen Weizuo (Tsinghua Univ.), The New Codification of Chinese Private International Law
- Andrey Lisitsyn-Svetlanov (Institute of State and Law, Russian Academy of Sciences), Applying Foreign Public Law in Private International Law - A Comparative Approach
- Christian Kohler (Honorary Director-General, Court of Justice of the European Union), Party Autonomy in Private International Law: A Universal Principle between Liberalism and Statism
- Maria Blanca Noodt Taquela (Univ. of Buenos Aires), Applying the most Favourable Treaty or Domestic Rules to Facilitate Private International Law Co-operation
- Mathias Audit (Univ. of Paris Ouest Nanterre La Défense), Bioethics in Private International Law
- Richard H. Kreindler (Univ. of Münster), Compétence-Compétence in the Face of Illegality in Contracts and Arbitration Agreements
- George A. Bermann, The UK Supreme Court Speaks to International Arbitration: Learning from the Dallah Case
- James M. Gaitis, Clearing the Air on "Manifest Disregard" and Choice of Law in Commercial Arbitration: A Reconciliation of Wilko, Hall Street, and Stolt-Nielsen
- Richard W. Hulbert, The Case for a Coherent Application of Chapter 2 of the Federal Arbitration Act
- Peter Ashford, Rule Changes Affecting the International Arbitration Community
- Dominique D'Allaire & Rolf Trittmann, Disclosure Requests in International Commercial Arbitration: Finding a Balance Not Only Between Legal Traditions but Also Between the Parties' Rights
This conference brings together experts from academia, business, government, international organisations, private legal practice and the non-profit sector, to discuss the opportunities and challenges associated with implementation of the UN Guiding Principles drafted by Professor John Ruggie. The focus will be on the actions business and governments might take to implement the Guiding Principles. Panelists will consider the implications of the recommendations Professor Ruggie has made in relation to a wide number of issues, including: the State's duty to protect human rights; corporate liability for human rights abuse; remedies; and the challenges faced by businesses operating in high risk environments.
Sunday, August 28, 2011
Rechtsvergleichung gewinnt auch im deutschsprachigen Raum immer mehr an Bedeutung. Dieser Band beschäftigt sich mit speziellen Fragen der Rechtsvergleichung an der deutsch-italienischen Sprachgrenze. Erarbeitet wurden die Beiträge überwiegend an der Universität Innsbruck unter Beteiligung weiterer internationaler Experten, wobei traditionelle Forschungsschwerpunkte dieser Universität im rechtsvergleichenden Bereich näher ausgeleuchtet wurden. So geht es in diesem Sammelband um Grundgedanken der Rechtsfragen in mehrsprachigen Rechtsordnungen und Rechtsräumen, um die Besonderheiten des rechtsvergleichenden Dialogs zwischen Österreich und Italien, um Fragen der grenzüberschreitenden Kooperation im Alpenraum, um das Thema Minderheitenschutz und Selbstbestimmung, um die Entwicklung der Privatrechtsordnungen in dieser Region, um die Föderalismusdebatte in Österreich und in Italien und um Fragen der Bildungskooperation in einem sich herausbildenden europäischen Bildungsraum.
Barnidge: The 2008 United States-India Nuclear Cooperation Agreement and the Work of the International Law Commission
This article examines the 2008 Agreement for Cooperation Between the Government of the United States of America and the Government of India Concerning Peaceful Uses of Nuclear Energy (123 Agreement) within the context of the International Law Commission (ILC)’s work on international liability for injurious consequences arising out of acts not prohibited by international law. It begins by sketching the black letter law of the 123 Agreement and situates it within a particular context of geopolitical change. It then explores the two international instruments that resulted from the ILC’s work on international liability for injurious consequences arising out of acts not prohibited by international law and examines how the underlying international environmental law principles that they reflect might interact with the 123 Agreement in practice. Attention is paid to three issues in particular, namely how international environmental law has developed to interact with vaguely-worded environmental protection provisions, such as those in the 123 Agreement, and the role of experts in this regard, the issue of civil nuclear liability, and the question of what international law might require for environmental impact assessments under the 123 Agreement to pass muster. Reference is made to the International Court of Justice’s 2010 decision in Case Concerning Pulp Mills on the River Uruguay.