Novel, hybrid and informal ways of international and transnational cooperation have emerged. Can the output of this informal cooperation, outside international organizations, involving state and non-state actors and leading to instruments other than formal treaties nonetheless amount to 'international law'? This paper examines whether 'informal international lawmaking' can still lead to international law. Is there a line or grey zone distinguishing law from non-law? What criterion does international law use to distinguish law from non-law? Who has the capacity to make international law? What is the difference between being law, having legal effects and being subject to law? And, perhaps most importantly, does it still matter whether an instrument is classified as inside or outside international law?
Saturday, October 29, 2011
Robinson: The Puzzle of Command Responsibility: Culpability, Causation and the Constraints of Justice
This article examines a current controversy in international criminal law, to show that it raises difficult questions about personal culpability and the principled limits of a criminal justice system. The doctrinal issue under discussion is whether a commander’s dereliction must facilitate or have an effect on a crime for her to be liable by virtue of command responsibility. An extension of the controversy is whether a successor commander can be held liable in relation to crimes occurring prior to her assignment.
Drawing on scholarship from criminal law theory on causation and culpability, I seek to demonstrate that the position currently taken in Tribunal jurisprudence is remarkable, in that it appears to contradict the principle of culpability as recognized by international criminal law itself. This internal contradiction is currently obscured by several factors. This article carefully examines these obscuring factors and counter-arguments, to expose the problem clearly. For example, Tribunal jurisprudence offers doctrinal arguments as to why causation is not required; I see to show that those arguments do not even attempt to address the contradiction with the fundamental principles of the system. As another example, many argue that command responsibility is not a mode of liability but rather a separate offence. That characterization would solve the culpability conundrum, but I argue that it is not available to the Tribunals and the ICC, given their applicable law, and given that they demonstrably do in fact charge and convict the commander as a party to the underlying crime.
Thus, to be maintained, the Tribunal position would at least require a careful deontological justification for a new concept of culpability. Possible outlines for such a conception are explored.
This inquiry has several implications. It shows the need for more careful grappling with the principled constraints of the system and concepts of culpability and causation. The causal contribution requirement in the Rome Statute, and the cautious approach of the majority in the Hadzihasanovic decision, are arguably to commended rather than condemned. Finally, the “risk aggravation” approach adopted in early ICC jurisprudence is supportable by deontological thinking about culpability.
Friday, October 28, 2011
Kathryn Sikkink offers a landmark argument for human rights prosecutions as a powerful political tool. She shows how, in just three decades, state leaders in Latin America, Europe, and Africa have lost their immunity from any accountability for their human rights violations, becoming the subjects of highly publicized trials resulting in severe consequences. This shift is affecting the behavior of political leaders worldwide and may change the face of global politics as we know it.
Drawing on extensive research and illuminating personal experience, Sikkink reveals how the stunning emergence of human rights prosecutions has come about; what effect it has had on democracy, conflict, and repression; and what it means for leaders and citizens everywhere, from Uruguay to the United States. The Justice Cascade is a vital read for anyone interested in the future of world politics and human rights.
AMERICAN SOCIETY OF INTERNATIONAL LAW
INTERNATIONAL ORGANIZATIONS INTEREST GROUP
Fletcher School of Law and Diplomacy
October 28, 2011
Jacob Katz Cogan, Co‐Chair, ASIL International Organizations Interest Group, Univ. of Cincinnati College of Law
Ian Johnstone, Professor of International Law, Fletcher School of Law and Diplomacy
Session 1: “The World Bank, the IMF, and Transparency in the 21st Century”
Author: David Gartner (Arizona State Univ. – Law)
Commentator: Ian Johnstone (Tufts Univ. – Fletcher School)
Session 2: “On Chapter VII 1/2 of the UN Charter”
Author: Antonia Chayes (Tufts Univ. – Fletcher School)
Commentator: David Gartner (Arizona State Univ. – Law)
Session 3: “Losing Its Grip? Congress and the World Bank”
Author: Kristina Daugirdas (Univ. of Michigan – Law)
Commentator: Jacob Katz Cogan (Univ. of Cincinnati – Law)
Session 4: “The High Seas Fisheries: A Case Study in Scarcity and Redistribution in International Law”
Author: Kristen Boon (Seton Hall Univ. – Law)
Commentator: Kristina Daugirdas (Univ. of Michigan – Law)
Session 5: “Manipulated Commitments: The International Criminal Court in Uganda”
Author: Kenneth Rodman (Colby College – Government)
Commentator: Shahram Dana (The John Marshall Law School)
Session 6: “United Nations Constitutional Assistance [UNCA]: New Additions to the ‘Standard of Civilization’?”
Author: Vijayashri Sripati (Postdoctoral fellow, Univ. of Toronto – Political Science and Adjunct Professor, Osgoode Hall)
Commentator: Louis Aucoin (Tufts Univ. – Fletcher School)
Thursday, October 27, 2011
Findlay & Hanif: International Conventions and the Failure of a Transnational Approach to Controlling Asian Crime Business
The paper argues that without a realistic understanding of criminal enterprise located against the commercial forces shaping contemporary Asian market contexts, then domestic, bi-lateral, regional and international control initiatives are not only likely to fail in their regulatory objectives, but the premises on which they are constructed may heighten the market conditions for crime business profitability.
The international convention-based approach to regulating transnational and organized crime is the framework from which a critique of non-market centred law enforcement control concentrations is developed. This critique reveals the transposition of flawed normative control considerations from domestic to supra-national control contexts, and shows how this in turn constrains and is constrained by organized crime research.
The paper suggests a novel methodology for understanding Asian crime business in its specific market realities and conditions. The analysis calls for a shift away from the normative ascription to supply directed regulatory emphasis. In conclusion, conventional crime control perspectives and directives can usefully be critiqued from their international as well as their domestic frames, enabling the creation of a refined and holistic legal response at each level that is supported by and not retarded with holistic research understandings.
In The Signature of Evil, the notion of torture in international law is explored, with the intention of discovering the precise meaning of this most infamous and yet still very prevalent practice. By devouring a wealth of international legal sources, and combining this with personal field research and a look at the historical, philosophical, cultural, political and social background of torture’s use and abolition, this book’s first ambition is to define the term. This leads to an extensive and impressive overview, in which torture’s constituent elements are carefully identified, thoroughly and meticulously scrutinised, and critically evaluated. On the basis of this synthesis and analysis, in which all possible uncertainties, problems and evolutions are highlighted and discussed, a redefinition is proposed, which does not shy away from setting foot on new terrain and trying what might be revolutionary roads. Some thought provoking ideas are suggested, and at times controversial choices are made, but all this is done in order to attain one all-important goal: enhancing torture’s absolute and non-derogable prohibition, and strengthening the international legal framework against unlawful abuse.
- International Tribunal for the Law of the Sea: Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, with introductory note by K. Russell LaMotte
- International Criminal Court: Situation in the Republic of Kenya — Decision on the ‘‘Application for Leave to Participate in the Proceedings before the Pre-Trial Chamber Relating to the Prosecutor’s Application under Article 58(7)’’, with introductory note by Amy Senier
- United Nations Security Council Resolution 1975 on Côte d’Ivoire, with introductory note by Saira Mohamed
- Special Tribunal for Lebanon: Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, with introductory note by Michael P. Scharf
- International Court of Justice: Case Concerning Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Geor. v. Russ.), with introductory note by Bart M.J. Szewczyk
- Supreme Court of Zimbabwe: Commercial Farmers Union et al. v. Minister of Lands & Rural Resettlement et al., with introductory note by Oliver R. Jones and Chido Dunn
- International Cocoa Agreement, with introductory note by Kathryn Khamsi
- Pierre Mayer, L'arbitre international et la hiérarchie des normes
- Philippe Pinsolle, Le financement de l'arbitrage par les tiers
- Maria Hauser-Morel, L'arbitrage en Pologne après la réforme de 2005
Zumbansen: Comparative, Global and Transnational Constitutionalism: The Emergence of a Transnational Legal-Pluralist Order
Comparative lawyers have for more than one-hundred years sought to increase the understanding of 'foreign' legal orders and regulatory systems. Despite some never fully resolved methodological questions, great advances have been made in the comparative study of different regulatory areas both in 'private' (contract, tort, corporate, labour) and 'public' law (administrative law, environmental law). Comparative constitutional law [CCL] has emerged as a field with particular significance. Born in the context of a politically extremely divided world after the Second World War, CCL has undergone tremendous change in an economically fast-integrating world since the late 1980s. The distinction between 'liberal' and 'socialist' constitutional orders that characterized early monographical treatments of the subjects has since given way to a very incoherent landscape of varieties of constitutionalism, with enormous consequences for the task of comparative constitutional law. Rather than being able to set side-by-side distinct doctrinal instruments or legal principles that can be associated with a particular constitutional system, the emerging transnational legal-pluralist order demands a methodologically radically opened and methodologically interdisciplinary approach to capture the dynamics of constitutionalization, which characterize today's processes of public-private norm creation and diffusion.
Wednesday, October 26, 2011
- Waldemar Hummer, Die SWIFT-Affaire: US-Terrorismusbekämpfung versus Datenschutz
- Karl-Heinz Ladeur, Ein Recht der Netzwerke für die Weltgesellschaft oder Konstitutionalisierung der Völkergemeinschaft?
- Beiträge und Berichte
- Robert Frau, Die Überweisung der Lage in Libyen an den Internationalen Strafgerichtshof durch den Sicherheitsrat der Vereinten Nationen - zugleich ein Beitrag zur Völkerstrafrechtspraxis des Sicherheitsrates
- Alexander Hofsommer, Die Anfänge der völkerrechtlichen Organleihe
The Energy Charter Treaty has come of age, with almost 50 States parties and a small but growing body of arbitral case law. In this new study of the Treaty's investment protection provisions, Thomas Roe and Matthew Happold set out to identify and explain the Treaty's principal provisions and to suggest answers to some of the difficult problems thrown up by its drafting. They discuss in detail questions such as the standards of protection granted by the Treaty and the international responsibility of States for breaches of the Treaty, the various procedures available for the vindication of rights under the Treaty and the conditions to be satisfied before a claimant's complaint may be considered on the merits. Specific issues addressed include the impact of EU law on claims under the Treaty and the Treaty's provisions concerning taxation.
- Global Insights
- Richard Gowan, Floating Down the River of History: Ban Ki-moon and Peacekeeping, 2007-2011
- Rama Mani & Thomas G. Weiss, Can Culture Prevent Massacres?
- Sophie Harman, Searching for an Executive Head? Leadership and UNAIDS
- Thomas Rixen, Tax Competition and Inequality: The Case for Global Tax Governance
- Ziya Öniş & Ali Burak Güven, The Global Economic Crisis and the Future of Neoliberal Globalization: Rupture Versus Continuity
- Stef Vandeginste & Chandra Lekha Sriram, Power Sharing and Transitional Justice: A Clash of Paradigms
- Marco Antonio Vieira & Chris Alden, India, Brazil, and South Africa (IBSA): South-South Cooperation and the Paradox of Regional Leadership
- Suzette R. Grillot, Global Gun Control: Examining the Consequences of Competing International Norms
- Review Essay
- Matthew Klick, Configuring Global Order: Institutions, Processes, and Effects
- Kanstantsin Dzehtsiarou & Alan Greene, Legitimacy and the Future of the European Court of Human Rights: Critical Perspectives from Academia and Practitioners
- John Hedigan, The European Court of Human Rights: Yesterday, Today and Tomorrow
- Kanstantsin Dzehtsiarou, European Consensus and the Evolutive Interpretation of the European Convention on Human Rights
- Sarah Lucy Cooper, Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights’ Jurisprudence on LGBT Rights
- Alan Greene, Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights
- Andrew Tickell, Dismantling the Iron-Cage: the Discursive Persistence and Legal Failure of a “Bureaucratic Rational” Construction of the Admissibility Decision-Making of the European Court of Human Rights
- Noreen O'Meara, “A More Secure Europe of Rights?” The European Court of Human Rights, the Court of Justice of the European Union and EU Accession to the ECHR
- Roderic O'Gorman, The ECHR, the EU and the Weakness of Social Rights Protection at European Level
- Michael O'Boyle, The Future of the European Court of Human Rights
Tuesday, October 25, 2011
Çali: The Legitimacy of International Interpretive Authorities for Human Rights Treaties: An Indirect-Instrumentalist Defense
In this paper I aim to defend a view in favor of accepting the international interpretive authority for human rights treaties. This view holds that there are good indirect instrumentalist reasons for starting with a presumption of deference towards international human rights interpretive authorities, be they quasi-judicial bodies or courts at the expenses of domestic interpretive authorities, namely the domestic judiciary, legislature and the executive when making sense of the scope and the application of international human rights law. We should treat questions of who should defer to what interpretations and who should make decisions as ultimately hinging on what institutional practices will, in the long term, promote a non-legitimacy based goal: the promotion of a human rights culture globally. I shall further argue that international interpretive authorities are better placed for furthering this goal because of the background conditions that define the state of human rights protections in the world today: significantly weak human rights protections coupled with underdeveloped human rights jurisprudence overall and risks of parochial interpretation domestically.
Alter, Helfer & Saldías: Transplanting the European Court of Justice: The Experience of the Andean Tribunal of Justice
Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants.
The article next explains why the Andean Pact's member states decided to add a court to their regional integration initiative, why they adapted the European Community model, and how the ECJ's existence has shaped the evolution of Andean legal doctrine and the political space within which the ATJ operates. We conclude by analyzing how the ATJ's experience informs the challenges of supranational transplants and theories of supranational legal integration more generally.
- Aviel Verbruggen, Preparing the design of robust climate policy architectures
- Xin Zhou & Hideyuki Mori, National institutional response to climate change and stakeholder participation: a comparative study for Asia
- Sander Happaerts, Karoline Van den Brande & Hans Bruyninckx, Subnational governments in transnational networks for sustainable development
- Stavros Afionis, The European Union as a negotiator in the international climate change regime
- Marco Grasso, The role of justice in the North–South conflict in climate change: the case of negotiations on the Adaptation Fund
Dispute settlement Panels and the Appellate Body of the World Trade Organization (WTO) have long been criticised for a ‘textual’ approach to treaty interpretation which focuses too much on the ordinary meaning of treaty provisions. Arguably this approach responded to fears of judicial activism and overreach by the judicial bodies which in turn may encroach upon sovereignty and national autonomy of WTO Members. In some decisions however, especially the Appellate Body has taken a more pro-active role, using for example object and purpose of the WTO Agreements to fill gaps and clarify ambiguities. For example in the famous US – Shrimp dispute, the Appellate Body emphasised that the sustainable development objective enshrined in the WTO preamble ‘must add colour, texture and shading to our interpretation of the Agreements annexed to the WTO Agreement’.
This of course includes the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). With its Articles 7 and 8, TRIPS is probably the only WTO Agreement which contains explicit textual expressions of its object and purpose. In the Doha Declaration on TRIPS and Public Health, all WTO Members stressed the importance of these norms for interpreting TRIPS. In substance, they align with the principle of integration and reconciliation of economic, social and environmental objectives. This principle is at the core of the notion of sustainable development as a concept in international law. It has been expressed in the ILA Declaration of Principles of International Law Related to Sustainable Development.
Against this background, one would expect Articles 7 and 8 TRIPS to play a prominent role in WTO dispute settlement related to TRIPS. Anyone familiar with IP-related disputes in the WTO however knows that this is not the case. This paper analyses when and how TRIPS jurisprudence has utilised these norms and tries to offer explanations for their (non) use.
Monday, October 24, 2011
- Matthew Happold, Introduction
- Nigel D. White, The Security Council, the Security Imperative and International Law
- Isobel Roele, Ascertaining Inchoate Threats to International Peace and Security
- Daniel H. Joyner, Nuclear Non-Proliferation and the UN Security Council in a Multipolar World: Can International Law Protect States from the Security Council?
- Dominika Švarc, Using Force in International Affairs: the Role of International Law in Contemporary International Politics
- James Summers, Russia and the Competing Spheres of Influence: the Case of Georgia, Abkhazia and South Ossetia
- Alexander Orakhelashvili, Hegemony, Multipolarity and the System of International Law
- Jörg Kammerhofer, Orthodox Generalists and Political Activists in International Legal Scholarship
- Silviya Lechner, Basic Rights and Global Justice: The Problem of International Coercion
- Jean D'Aspremont & Eric de Brabandere, The Duality of the Legitimacy of Global Actors in the International Legal Order
- Christian Pippin, Democracy as a Global Norm: Has It Finally Emerged?
- Pablo Pareja-Alcaraz, International Law and East Asia's Regional Order: The Strengthening of a Fundamental Institution
- Rima Tkatova, Post-Soviet States and International Law in a Multipolar World
- Katja Samuel, Universality, the UN and the Organisation of the Islamic Conference: Single, Complementary, or Competing Legal Orders?
- Carmen Draghici, The Development of Self-Contained Regimes as an Obstacle to UN Global Governance
- Aurel Sari, The Relationship between Community Law and International Law after Kadi: Did the ECJ Slam the Door on ‘Effective Multilateralism?
Né le 19 Mars 1878 à Avranches (Manche), Georges Scelle a fait ses études supérieures à l’Ecole libre des sciences ainsi qu’à la Faculté de droit de Paris où il a soutenu en 1906 sa thèse de doctorat sur la traite négrière aux Indes de Castille. En 1912, il a été nommé Professeur à la Faculté de droit de Dijon, où il a exercé durant vingt ans. Il a essentiellement enseigné le droit international public et il a ouvert des perspectives de recherche nouvelles, inspirées des théories d’E. Durkheim et de L. Duguit sur la solidarité sociale comme fondement premier du droit international.Ses contributions à la compréhension des phénomènes juridiques au niveau international sont multiples, qu’il s’agisse de la création des normes, des rapports entre ordres juridiques, des mutations étatiques, de la souveraineté et du fédéralisme.
Bilateral investment treaties (BITs) are famously asymmetric. They grant investors rights but not obligations, while imposing upon states obligations unaccompanied by rights. Recent cases suggest, however, that BIT tribunals are poised to recognize a defense to state BIT liability that, in effect, imposes upon investors the obligation to avoid involvement in public corruption in the course of making a treaty-protected investment. In this short article I sketch out the contours of this emergent defense, focusing on the recent investment treaty arbitration between Siemens, A.G. and Argentina. Siemens was awarded $200 million for Argentina’s expropriation of its investment, but Siemens voluntarily abandoned the award in response to post-award revelations that Siemens had procured the investment through the systematic bribery of Argentine officials. While the Siemens tribunal never had the chance to rule on the legal consequences of the bribery allegations, jurisprudential trends suggest that it would likely have used the fact of corruption to either decline jurisdiction or to otherwise refuse to recognize Siemens’ substantive treaty-based rights. I nonetheless argue that the specific contours of this emerging corruption defense are uncertain, and I suggest model investment treaty text for states that wish to secure their reliable access to it.
There is not one, perfect model for institutional regulatory cooperation, nor is there a single model for eliminating technical barriers to trade or discriminatory sanitary and phytosanitary measures in a preferential trade agreement (PTA). However, recent experience with PTAs has shown that it is possible to progress beyond entirely separate regulation in specific sectors by each party with bilateral government committees that only meet once a year to joint committees that meet on a regular basis and engage in joint harmonization, rule-making, mutual recognition, and problem-solving.
In a new generation PTA (either free trade agreement or customs union) in which economic integration is an agreed policy objective, joint institutions will be necessary to effectively implement harmonization of standards and development of joint standards codes as well as mutual recognition of technical regulations, standards and occupational qualifications.
- Nigel D. White, Towards Integrated Peace Operations: The Evolution of Peacekeeping and Coalitions of the Willing
- Marco Odello & Ryszard Piotrowicz, Legal Regimes Governing International Military Missions
- Katie E. Sams, IHL Obligations of the UN and other International Organisations Involved in International Missions
- Susan C. Breau, A Single Standard for Coalitions: Lowest Common Denominator or Highest Standard?
- Noëlle Quénivet, Human Rights Law and Peacekeeping Operations
- Ben Klappe, Rules of Engagement
- Ulf Häußler, Crisis Response Operations in Maritime Environments
- Paolina Massidda, Criminal Responsibility of International Military Missions and Personnel
- Nicholas Tsagourias, The Responsibility of International Organisations for Military Missions
Sunday, October 23, 2011
- Kristin Henrard, Tracing Visions on Integration and/of Minorities: An Analysis of the Supervisory Practice of the FCNM
- Roberta Medda-Windischer, New Minorities, Old Instruments? A Common but Differentiated System of Minority Protection
- Alexander Osipov, Non-territorial Autonomy and International Law
- Mauro Barelli, Shaping Indigenous Self-Determination: Promising or Unsatisfactory Solutions?
- Tawhida Ahmed, The EU, Counter-Terrorism and the Protection of Muslims as European Minorities
- Yee Huang, Robert L. Glicksman, Catherine O'Neill, William L. Andreen, Victor Flatt, William Funk, Robin Kundis Craig, Alice Kaswan & Robert R.M. Verchick, Climate change and the Puget Sound: Building the legal framework for adaptation
- Maxine Burkett, The Nation Ex-Situ: On climate change, deterritorialized nationhood and the post-climate era
- Martin O. Oulu, Mainstreaming climate adaptation in Kenya
- Daniel H. Cole, From global to polycentric climate governance
- Britta Horstmann & Achala Chandani Abeysinghe, The Adaptation Fund of the Kyoto Protocol: A model for financing adaptation to climate change?
- Annalisa Savaresi, Forests, economics, and climate change