- F. Parodi, La coordination entre armées régulières et sociétés militaires privées : complémentarité ou concurrence ?
- H. Abtahi, Le rôle des Etats frontaliers face aux groupes armés : les limites de la participation au conflit
- F. Mégret, La diversification des acteurs impliqués dans les conflits armés : vers un dépassement de la « participation directe aux hostilités » ?
- A. Balguy-Gallois, Le rôle des médias et l’accès des journalistes sur le terrain des hostilités : une garantie supplémentaire du respect du droit international humanitaire ?
- I. Brachet, Le rôle des organisations internationales non gouvernementales dans la condamnation des violations du droit international humanitaire
- L. Balmond, Condamnation médiatique, politique et/ou juridique des violations du droit international humanitaire : quelle efficacité ?
- S. Zašova, Le rôle des organisations internationales dans l’incitation des groupes armés au respect du droit international humanitaire
- P. Bongard, Le rôle des organisations non-gouvernementales dans l’incitation des groupes armés au respect du droit international humanitaire
- L. Burgorgue-Larsen & C. Botoko-Claeysen, Les tiers comme interlocuteurs privilégiés des groupes armés ?
- S. Vité, L’accès du personnel humanitaire à la population civile en temps de conflit armé et la sécurité des personnels et des locaux des organisations humanitaires
- P. Peugnet, Un exemple d’action militaire de protection de la population civile : le cas d'EUFOR Tchad
- G. Abi Saab, Vers un mécanisme global de protection de la population civile en temps de conflit armé ?
- J.-M. Sorel, Le tiers, le conflit armé et le droit humanitaire : Retour sur un tonneau des danaïdes du droit international
Saturday, October 8, 2011
Friday, October 7, 2011
Scott, Cafaggi, & Senden: The Challenge of Transnational Private Regulation: Conceptual and Constitutional Debates
- Colin Scott, Fabrizio Cafaggi, & Linda Senden, The Conceptual and Constitutional Challenge of Transnational Private Regulation
- Fabrizio Cafaggi, New Foundations of Transnational Private Regulation
- Peer Zumbansen, Neither ‘Public' nor ‘Private', ‘National' nor ‘International': Transnational Corporate Governance from a Legal Pluralist Perspective
- Donal Casey & Colin Scott, The Crystallization of Regulatory Norms
- Fiona de Londras, Privatized Sovereign Performance: Regulating in the ‘Gap' between Security and Rights?
- Imelda Maher, Competition Law and Transnational Private Regulatory Regimes: Marking the Cartel Boundary
- Jacco Bomhoff & Anne Meuwese, The Meta-regulation of Transnational Private Regulation
- Deirdre Curtin & Linda Senden, Public Accountability of Transnational Private Regulation: Chimera or Reality?
- Special Issue: Third World Approaches to International Law (TWAIL)
- B.S. Chimni, The World of TWAIL: Introduction to the Special Issue
- James Thuo Gathii, TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography
- Mohsen Al Attar & Rebekah Thompson, How the Multi- Level Democratisation of International Law-Making Can Effect Popular Aspirations Towards Self-Determination
- Luis Eslava & Sundhya Pahuja, Between Resistance and Reform: TWAIL and the Universality of International Law
- Gus Van Harten, TWAIL and the Dabhol Arbitration
- Sara L. Seck, Transnational Business and Environmental Harm: A TWAIL Analysis of Home State Obligations
- M. Sornarajah, Mutations of Neo-Liberalism in International Investment Law
In 2009 the European Court of Justice (ECJ) rendered - for the first time - three important judgments on the relationship between pre-accession Bilateral Investment Treaties (BITs) of EU Member States with third states and Community law. As will be discussed below in more detail, the thrust of these judgments is that even in case of ‘hypothetical incompatibilities’ between the BITs and Community law, the BITs must be either brought into line with Community law or, if that proves impossible, be denounced.
This approach not only illustrates that, according to the ECJ, Community law in any case supersedes even prior international obligations of the EU Member States, but - even more importantly - underlines the desire of the ECJ to ensure that no international court or arbitral tribunal gets into the position of interpreting or applying Community law, thereby undermining the exclusive jurisdiction of the ECJ. Moreover, with the entering into force of the Lisbon Treaty on December 1, 2009, foreign direct investment (FDI) has been added to the exclusive external trade competence of the EU (Article 207 TFEU, former Article 133 EC). Despite the fact that FDI is nowhere defined in the EU Treaties, the European Commission assumes that all the issues typically regulated in BITs (i.e. most favoured nation treatment (MFN), national treatment (NT), fair and equitable treatment (FET), dispute settlement procedures, compensation for expropriation) fall under this new exclusive competence of the EU. However, as will be discussed in more detail below, this view is certainly not shared by most, if not all EU Member States.
In the light of these recent developments in EU law, the European Commission has published a Communication and a proposal for a Regulation that are intended to address most of the unsettled issues. Irrespective of the final outcome, one thing is certain: the already complicated matrix of investment law and public international law will become even more complicated by the addition of Community law as new important factor. The aim of this contribution is to analyze the new Common European Investment Policy (CEIP) that is currently in the making from the perspective of the Netherlands, which belongs to the leading EU Member States regarding inward and outward investments.
The main argument that will be put forward is that the high standards of protection provided for by the existing Member States' BITs will - most probably - be lost in this transitional operation of transferring the FDI competence to the EU.
Hafner-Burton & Montgomery: War, Trade, and Distrust: Why Trade Agreements Don’t Always Keep the Peace
There is growing evidence that preferential trade agreements (PTAs) provide strong institutional incentives to prevent international conflict among member states, often creating the conditions of trust that can help prevent militarized aggression. We provide an approach to the study of how international institutions influence conflict behavior that considers how PTAs exclude as well as include members and create asymmetrical relationships among members that could exacerbate conflict. PTAs do more than create expectations of economic gains and reduce opportunism; they also create hierarchical relations between states, which can encourage conflict under different conditions due to distrust. We theorize these conditions for militarized international disputes (MIDs), develop appropriate measures using social network analysis, and test our expectations on new PTA data during the period 1950 to 2000.
Thursday, October 6, 2011
- Vivek Joshi, Preferential Tariff Formation: The Case of the European Union
- Pierre Sauvé & Anirudh Shingal, Reflections on the Preferential Liberalization of Services Trade
- Jappe Eckhardt, Firm Lobbying and EU Trade Policymaking: Reflections on the Anti-Dumping Case against Chinese and Vietnamese Shoes (2005–2011)
- Aik Hoe Lim & Raymond Saner, Rethinking Trade in Education Services: A Wake-Up Call for Trade Negotiators
- Nilanjan Banik, China’s New-Found Love: The GMS
- Claus D. Zimmermann, Rethinking the Right to Initiate WTO Dispute Settlement Proceedings
- Christian Tietje, Bernhard Kluttig, & Martina Franke, Cost of Production Adjustments in Anti-dumping Proceedings: Challenging Raw Material Inputs Dual Pricing Systems in EU Anti-dumping Law and Practice
Halliday: Architects of the State: International Financial Institutions and the Reconstruction of the State
For international financial institutions (IFIs), it is a continuing puzzle why the global norms they propagate are enacted either reluctantly or not at all. This article shows that failures of enactment and implementation frequently occur because many IFI-initiated law reforms go far beyond changing the law; they amount to a restructuring of the state itself and the accompanying redistributions of power. This article demonstrates how state restructuring can occur in a technical area of commercial law by re-analyzing the ways global and transnational designs of corporate bankruptcy regimes fared between 1998 and 2006 in three countries variously affected by the Asian Financial Crisis: China, Indonesia and Korea. State restructuring occurred by (1) shifting the boundary between the market and state; (2) shifting power inside the state; and (3) vesting new powers in the state. The article identifies the recursive dynamics through which the changes unfolded and shows how variations in the efficacy of international architects of the state can be attributed to the interplay of four sets of factors: the coherence of global norms; the relative power of global versus state actors; domestic demand and mobilization for restructuring; and the extent of state restructuring that reforms will induce.
National Human Rights Institutions (NHRIs) – human rights commissions and ombudsmen – have gained recognition as a possible missing link in the transmission and implementation of international human rights norms at the domestic level. They are also increasingly accepted as important participants in global and regional forums where international norms are produced. By collecting innovative work from experts spanning international law, political science, sociology, and human rights practice, we critically examine the significance of this relatively new class of organizations. Our project focuses, in particular, on the prospects of these institutions to effectuate state compliance and social change. Consideration is given to the role of NHRIs in delegitimizing – though sometimes legitimizing – governments’ poor human rights records and in mobilizing – though sometimes demobilizing – civil society actors. We analyze the broader implications of such cross-cutting research for scholarship and practice in the fields of human rights and global politics in general.
Wednesday, October 5, 2011
This year's Symposium will be a festschrift honoring Professor Hungdah Chiu's enduring legacy in relation to China, Taiwan, and International Law. Professor Chiu authored influential treatises on international law and trade, wrote numerous scholarly articles, and mentored countless students, including the current President of the Republic of China, Taiwan, MA Ying-jeou. Among the most lasting features of Professor Chiu's considerable legacy is his integral role in establishing the framework through which China and Taiwan conduct relations today. As the Mainland Affairs Council said, to reconcile past conflicts, both China and Taiwan should seek the "promotion of mutual understanding through people-to-people exchanges and elimination of hostility through reciprocity, in the hopes that the order and rules for such exchanges can be established between the two sides." It is in this spirit that we wish to honor Professor Chiu.
Who governs international trade law regimes? Although this question has attracted much research for global regulatory regimes, very little is known about international trade law organizations which function as global legislatures. This paper focuses on hitherto invisible attributes of the inner core of global legislators - the state and non-state delegations and delegations that create global norms for private international trade law through the most prominent global trade legislature, the United Nations Commission on International Trade Law (UNCITRAL). Based on ten years of fieldwork, extensive interviews, and unique data on delegation attendance and participation in UNCITRAL’s Working Group on Insolvency, the paper positions the empirical question of delegation attributes within broader theories of global norm-making and specifies these with respect to several hypotheses. The data show that the inner core of global trade lawmakers at UNCITRAL represents a tiny and unrepresentative subset of state and non-state actors. This disjunction between UNCITRAL’s public face, which accords with a global norm of democratic governance, and its private face, where dominant states and private interests prevail, creates potential problems of legitimacy for UNCITRAL and the probable adoption and implementation of its trade law products.
- Research Articles
- Robert E. Goodin & Steven R. Ratner, Democratizing International Law
- Stephen Castles, Bringing Human Rights into the Migration and Development Debate
- Ronald U. Mendoza, Crises and Inequality: Lessons from the Global Food, Fuel, Financial and Economic Crises of 2008–10
- Terutomo Ozawa, The (Japan-Born) ‘Flying-Geese’ Theory of Economic Development Revisited – and Reformulated from a Structuralist Perspective
- Mark Zeitoun, The Global Web of National Water Security
- Special Section - The OECD at 50
- Judith Clifton & Daniel Díaz-Fuentes, The Organisation for Economic Cooperation and Development 1961–2011: Challenges for the Next 50 Years
- Judith Clifton & Daniel Díaz-Fuentes, From ‘Club of the Rich’ to ‘Globalisation à la carte’? Evaluating Reform at the OECD
- Jean-Marc Coicaud & Jin Zhang, The OECD as a Global Data Collection and Policy Analysis Organization: Some Strengths and Weaknesses
- Angel Gurría, The OECD at 50: Past Achievements, Present Challenges and Future Directions
- Survey Article
- Jasper Kim, Law of War 2.0: Cyberwar and the Limits of the UN Charter
- Practitioner Commentaries
- Richard Goldstone, Dealing with the Past: Peace and Justice in the Former Yugoslavia
- Salil Shetty, Human Rights and Natural Disasters: Mitigating or Exacerbating the Damage?
- Bob Tarrant, Delivering Maritime Power in the Age of Interconnectivity
- Helmut Kaiser, The Eurozone: Challenges and Structural Problems
- Responses to Articles
- Faizel Ismail, Developing Countries Create Momentum for Change in the WTO
- Michael Chibba, Current and Future Global Development Goals
- Review Essay
- Ben O’Loughlin, Information Overload, Paradigm Underload? The Internet and Political Disruption
- Symposium: The Future of International Criminal Justice
- M. Cherif Bassiouni, Challenges facing a rule-of-law-oriented world order
- Naomi Norberg, Terrorism and international criminal justice: dim prospects for a future together
- Jordan J. Paust, Terrorism’s proscription and core elements of an objective definition
- Kathleen Maloney-Dunn, Humanizing terrorism through international criminal law: equal justice for victims, fair treatment of suspects, and fundamental human rights at the ICC
- Luz E. Nagle, Should terrorism be subject to universal jurisdiction?
- Stephen I. Vladeck, Terrorism and international criminal law after the Military Commissions Acts
- Michael A. Newton, The complementarity conundrum: are we watching evolution or evisceration?
- Linda E. Carter, Principle of conplementarity and the International Criminal Court: the role of ne bis in idem
- Linda M. Keller, The practice of the International Criminal Court: comments on “the complementarity conundrum”
- Brad R. Roth, Coming to terms with ruthlessness, sovereign equality, global pluralism, and the limits of international criminal justice
- Jamie Mayerfeld, Ruthlessness, impunity, and the effacement of international human rights law
- André Nollkaemper, Systematic effects of international responsibility for international crimes
- Allen S. Weiner, Working the system: a comment on André Nollkaemper’s system criminality in international law
- Julian Ku, How system criminality could exacerbate the weaknesses of international criminal law
- Mark A. Drumbl, Accountability for system criminality
This chapter is a contribution to The Oxford Guide to Treaties (Duncan Hollis, ed., Oxford University Press, forthcoming 2012). Part I of the chapter provides an overview of the international law rules governing exit from multilateral and bilateral treaties, including key provisions of the Vienna Convention on the Law of Treaties. Part II highlights the wide variations in the design and invocation of treaty termination, denunciation, and withdrawal clauses using illustrations from a range of subject areas. Part III sets forth a theory of treaty exit. It argues that termination, denunciation, and withdrawal clauses are tools for managing risk - a pervasive feature of international affairs. A concluding section briefly identifies avenues for future research on treaty exit that may aid scholars and practitioners alike.
Tuesday, October 4, 2011
The United Nations system's foundational principle of sovereign equality reflects persistent disagreement within its membership as to what constitutes a legitimate and just internal public order. While the boundaries of the system's pluralism have narrowed progressively in the course of the United Nations era, accommodation of diversity in modes of internal political organization remains a durable theme of the international order. This accommodation of diversity underlies the international system's commitment to preserve states' territorial integrity and political independence, often at the expense of other values. For those who impute to the international legal order an inherent purpose to establish a universal justice that transcends the boundaries of territorial communities, the legal prerogatives associated with state sovereignty appear as impediments to the global advance of legality. That view, however, neglects the danger of allowing powerful states to invoke universal principles to rationalize unilateral (and often self-serving) impositions upon weak states. Though frequently counterintuitive, limitations on cross-border exercises of power are supported by substantial moral and political considerations, and are properly overridden only in a limited range of cases.
Sovereign Equality and Moral Disagreement accomplishes two tasks. One is to construct a unifying account of the manifestations of the principle of sovereign equality in international legal norms governing a range of subject areas, from foundational matters such as the recognition of states and governments to controversial questions such as legal authority for extraterritorial criminal prosecution and armed intervention. The other is to defend the principle as a morally sound response to persistent and profound disagreement within the international community as to the requirements of legitimate and just internal public order.
Stephens: Abusing the Authority of the State: Denying Foreign Official Immunity for Egregious Human Rights Abuses
When victims and survivors of egregious human rights abuses seek to hold state officials accountable, the officials will inevitably claim immunity from criminal prosecution or civil lawsuits. They argue that they are protected by the state’s own immunity because only the state can be held responsible for acts committed by its officials, even if those actions violate international law. This claim to immunity is founded on two interrelated errors, one based in history and one in logic.
First, the human rights transformation of international law that began in the aftermath of World War II has also transformed immunity law. International human rights norms have rendered obsolete the view that a state can protect its own officials from accountability for international human rights violations. In the era of international human rights norms that govern despite conflicting domestic laws, foreign officials who commit egregious abuses cannot shelter behind the immunity of the state.
Second, immunity absolutists err when they insist that, because the state is responsible under international law for acts committed in the exercise of governmental authority, the officials who commit such acts must be protected by the state’s immunity. There is no logical bar to holding both states and their officials responsible for international human rights violations. Nor is there any logical bar to denying immunity to officials even if the state itself is granted immunity. The policies underlying the various categories of immunity differ, and offering immunity to one actor does not require immunizing others.
International human rights norms fundamentally altered the relationship between international law and domestic human rights violations. Government officials have no claim to immunity in foreign or international courts for acts in violation of those norms.
Symposium: International Economic Law in a Time of Change: Reassessing Legal Theory, Doctrine, Methodology and Policy Prescriptions
- Gregory C. Shaffer, Introduction: International Economic Law in a Time of Change
- Beth A. Simmons & Andrew B. Breudenbach. The empirical turn in international economic law
- José E. Alvarez, The return of the state
- Ricardo Ramirez, Professor Hudec and the appellate body
- Hugh M. Hollman & William E. Kovacic. The international competition network: its past, current and future role
- Bernard Hoekman, Proposals for WTO reform: a synthesis and assessment
- Chiedu Osakwe, Developing countries and GATT/WTO rules: dynamic transformations in trade policy behavior and performance
- Jeffrey L. Dunoff, Hudec’s methods—and ours
- Caroline Bradley, Consultation and legitimacy in transnational standard-setting
- Uché U. Ewelukwa, South-South trade and investment: the good, the bad, and the ugly—African perspectives
- Aldo Caliari, Updating the international monetary system to respond to current global challenges: can it happen with the existing legal framework?
Now, on the occasion of his eightieth birthday, the international arbitration and sales law community has gathered to honour him with this substantial collection of new essays on the many facets of the field to which he continues to bring his intellect, integrity, inquisitive nature, eye for detail, precision, and commitment to public service.
Celebrating the long-standing and sustained contribution Eric Bergsten has made in international commercial law, international arbitration, and legal education, more than fifty colleagues – among them quite a few of the best-known arbitrators and arbitration academics in the world – present 45 pieces that, individually both engaging and incisive, collectively present a thorough and far-reaching account of the state of the field today, with contributions covering international sales law, commercial law, commercial arbitration, and investment arbitration.
In addition, nine essays on issues in legal education mirror the great importance of the renowned Willem C. Vis International Commercial Arbitration Moot, Eric’s Vienna project which has offered a life-changing experience for so many young lawyers from all over the world.
Monday, October 3, 2011
Guilfoyle: Responsibility for Collective Atrocities: Fair Labeling and Approaches to Commission in International Criminal Law
A major theoretical challenge for international criminal law is how to account for and adequately label the responsibility of the highest ranking leaders, often far removed from actual killings carried out through an organization or movement. This challenge is also coupled with a problem of labelling. We commonly distinguish between the person who directly committed a crime (the perpetrator/principal) and a person who assisted in the commission of the crime less directly (an accessory). On this approach leaders may seem ‘mere’ accessories. Nonetheless, given the perceived truth-telling function of international criminal trials, judges seemingly feel compelled to label leaders as direct perpetrators who have committed the crime itself and not as accessories who have ordered or incited or failed to prevent it. This requires an expanded concept of commission, a project that immediately raises questions of theory, black letter scholarship and fairness. Once we uncouple commission from the direct physical perpetrator, where do the boundaries of commission fall? A too diffuse theory of commission may inappropriately stigmatize ‘small fish’, labelling them as being equally as culpable as high-ranking leaders. This article critically reviews the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) on commission in collective responsibility cases. The conclusion reached is that the preferable view is that leaders are accessories who can nonetheless be more culpable than principals, because they are aggregators of responsibility. What we need are not new tools, but different ways of understanding existing concepts.
Hoffmann: Is the Gaza Strip Still an Occupied Territory? Divergent Approaches in International Humanitarian Law
Since Israel withdrew its troops from the Gaza Strip, there has been a fierce academic but also political debate over the legal status of the territory. While the Israeli government repeatedly asserted that by giving up military presence it has abrogated its rights and duties as Occupant, a substantial number of countries and international lawyers maintain that notwithstanding the lack of territorial control Israel still remains the Occupying Power. This short article attempts to clarify this problem by analyzing the legal concept of occupation and applying it to the factual situation in the Gaza Strip. It concludes that the two opposing positions can be reconciled by applying a functional approach: in the absence of effective control over the territory Israel does not occupy the Gaza Strip but it still has to discharge obligations flowing from the law of occupation to the extent Palestinians are "in the power" of Israel.
Halliday: Legal Yardsticks: International Financial Institutions as Diagnosticians and Designers of the Laws of Nations
In the past twenty years the legal departments of regional and global international financial institutions have become influential diagnosticians and designers of legal systems. This paper analyzes the intricacies and traces of power that surround the use of indicators by four IFI legal departments - the Asian Development Bank, European Bank for Reconstruction and Development, World Bank, International Monetary Fund - with particular reference to indicators of insolvency regimes. On the basis of its empirical research, the paper advances five theoretical propositions. First, the use and form of indicators by any one IFI reflects the structure and dynamics of the ecology of international organizations in which it is embedded. Second, the use of indicators is impelled by organizational imperatives that require IFIs to take on enormous tasks for which they are under-resourced. Third, an implicit and sometimes explicit epistemological tension among professions within IFIs impels their legal departments to diagnose national legal systems with technologies drawn more from the social sciences and finance than law. Fourth, because the competitiveness of IFIs as global normmakers depends upon their legitimacy, they are pressed to adopt representations of complex phenomena - legal systems - in forms that are acceptable to their core constituencies. Fifth, as a lever of legal change indicators are embedded in the recursivity of law which is characteristic of wide-ranging efforts to induce legal change domestically and globally.
This chapter provides an overview of what we know about international judicial independence. First, what is international judicial independence? Judicial independence refers to the set of institutional and other factors that to a lesser or greater extents allow judges autonomy from the preferences of other political actors when they issue legal opinions. How judges will use this autonomy is a separate question. Second, why do some international courts have a great deal of independence while others do not? Viable theories of judicial independence should not be based on assumptions that judges are ontologically inclined to favor greater separation from states whereas states have opposite inclinations. Instead, I emphasize the answers offered by two groups of theories: rationalist institutionalist (or principal-agent) and sociological-institutionalist (or neofunctionalist) approaches. Third, what do we know about the degree to which governments can use control mechanisms to influence judges? Here I discuss the various challenges to empirically studying judicial independence. Finally, does judicial independence increase the effectiveness of international courts? This latter section highlights fears that the judicialization of politics is met by an increased politicization of the judiciary.
Topics to be covered include, but are not limited to, international technological and intellectual property issues, issues surrounding cultural property, developments in cybercrime and cyberwarfare, international privacy issues and, more generally, cutting edge developments in international environmental, human rights and business and trade law. The conference hopes to explore the international law implications of important policy developments, including Wikileaks, the role of social networking technologies in international relations and political unrest and revolution, matters surrounding human smuggling and migration, and the like.
- M.D. Fink, The Right of Visit for Warships: Some Challenges in Applying the Law of Maritime Interdiction on the High Seas
- Katherina Ziolkowsi, Computer Network Operations and the Law of Armed Conflict
- Tom Ruys, Defining the Crime of Aggression : the Kampala Consensus
- Kenneth Manusama, Prosecuting Pirates in the Netherlands : the Case of the MS Samanyolu
- I. Henderson, Manual on International Law Applicable to Air and Missile Warfare: A Review
Sunday, October 2, 2011
Pahuja: Decolonising International Law: Development, Economic Growth and the Politics of Universality
The universal promise of contemporary international law has long inspired countries of the Global South to use it as an important field of contestation over global inequality. Taking three central examples, Sundhya Pahuja argues that this promise has been subsumed within a universal claim for a particular way of life by the idea of 'development'. As the horizon of the promised transformation and concomitant equality has receded ever further, international law has legitimised an ever-increasing sphere of intervention in the Third World. The post-war wave of decolonisation ended in the creation of the developmental nation-state, the claim to permanent sovereignty over natural resources in the 1950s and 1960s was transformed into the protection of foreign investors, and the promotion of the rule of international law in the early 1990s has brought about the rise of the rule of law as a development strategy in the present day.