This study, a realist interpretation of the long diplomatic record that produced the coming of World War II in 1939, is a critique of the Paris Peace Conference and reflects the judgment shared by many who left the Conference in 1919 in disgust amid predictions of future war. The critique is a rejection of the idea of collective security, which Woodrow Wilson and many others believed was a panacea, but which was also condemned as early as 1915. This book delivers a powerful lesson in treaty-making and rejects the supposition that treaties, once made, are unchangeable, whatever their faults.
Saturday, December 17, 2011
Friday, December 16, 2011
- Paul Behrens, Assessment of International Criminal Evidence. The Case of the Unpredictable Génocidaire
- Matthias Klatt, Positive Obligations under the European Convention of Human Rights
- Sina van den Bogaert, Roma Segregation in Education. Direct or Indirect Discrimination?
- Henrik Wenander, Recognition of Foreign Administrative Decisions. Balancing International Cooperation, National Self-Determination, and Individual Rights
- Stellungnahmen und Berichte
- Carla M. Zoethout, The Dilemma of Constitutional Comparativism
- Martin Schaub, Zur völkerrechtlichen Zulässigkeit des amerikanischen Editionsbefehls an die UBS im Streit um die Kundendaten
Lavranos: Is an International Investor-to-State Arbitration System Under the Auspices of the ECJ Possible?
Almost two years into the Lisbon Treaty, it has by now become general knowledge that the EU has obtained explicit exclusive external competence in the area of Foreign Direct Investment (FDI) (Article 207 (1) TFEU). This transfer of competence from the Member States to the EU has created a host of major problems and raised many complex legal, institutional, economic and political questions, which will keep many of us busy for a long time.
Suffice to mention the still unresolved faith of existing extra-EU and intra-EU Bilateral Investment Treaties (BITs) of the Member States, the lack of definition of what FDI actually encompasses, and more generally, the lack of a clear delineation of the distribution of competences between the EU and its Member States with regard to FDI. More fundamentally, it remains to be seen how the European Parliament (EP) is going to use its new co-legislative powers concerning FDI in order to introduce non-trade concerns into this policy field. This list could of course be extended much further, but this contribution will leave these issues aside. Instead, I will merely try to answer the simple but very relevant question of whether, and if so, to what extent an international investor-to-state arbitration system under the auspices of the ECJ is at all possible.
Since the Treaties do not contain an outright – positive or negative – answer, one must turn to the jurisprudence of the ECJ. So far, the ECJ has not explicitly and directly addressed this question either. However, the ECJ has in the past issued several related Opinions and rendered many relevant judgments, which – taken together – should provide for a sufficient basis in order to answer the question to an extent that goes beyond mere speculation.
In the first place, the ECJ has made its views known as to the conditions and limitations of establishing and using international arbitration dispute settlement systems for resolving disputes between EU Member States.
In the second place, and most recently in Opinion 1/09 , the ECJ has quite clearly explained the limits for establishing an international court system for resolving disputes between private parties.
Thus, whereas the ECJ has not yet directly addressed the for our purposes relevant configuration of investor-to-(Member)state dispute settlement system within the European legal order, the approaches taken so far by the ECJ concerning Member State-to-Member State dispute resolution and dispute resolution between private parties, provide clear indications of how the ECJ would determine the question of allowing an investor-to-state arbitration dispute settlement system within the European legal order.
In other words, by using the detour of relying in analogy on the existing ECJ jurisprudence, an attempt is made to extrapolate the position the ECJ is likely to take for the configuration of investor-to-state arbitration.
The starting point of the subsequent analysis will thus be Opinion 1/09, enriched by other relevant Opinions and judgments such as Opinion 1/91 and MOX plant . The working hypothesis for this contribution is that the EU is competent to conclude - together with the Member States - comprehensive FTAs that include investment chapters as well as stand-alone EU BITs as mixed agreements.
Furthermore, it is assumed that such FTAs and EU BITs will contain full-fledged international investor-to-state arbitration rules or systems that are comparable to what is currently the best practice of the Member States’ BITs.
The analysis will proceed by first shortly recalling the main reasons for including investor-to-state arbitration systems in practically all BITs. After having thus established the rationale and functioning of such systems in international (investment) law, the analysis will turn towards the situation within the EU, in particular as determined by the jurisprudence of the ECJ. Finally, some concluding remarks will wrap up this contribution.
The Basel Committee on Banking Supervision (BCBS) sets the guidelines for world-wide regulation of banks. It is the forum for agreeing international regulation on the conduct of banking. Based on special access to the archives of the BCBS and interviews with many of its key players, this book tells the story of the early years of the Committee from its foundation in 1974/5 right through until 1997 – the year that marks the watershed between the Basel I Accord on Capital Adequacy and the start of work on Basel II. In addition, the book covers the Concordat, the Market Risk Amendment, the Core Principles of Banking and all other facets of the work of the BCBS. While the book is primarily a record of the history of the BCBS, it also provides an assessment of its actions and efficacy. It is a major contribution to the historical record on banking supervision.
- Eric Loquin, Retour dépassionné sur l’arrêt INSERM c/ Fondation Leeten F. Saugstad (Tribunal des conflits, 17 mai 2010)
- Thomas Schultz & David Holloway, Retour sur la comity (Première partie)
- Jonathan Mattou, Le Bribery Act ou les choix de la loi britannique en matière de lutte contre la corruption - Un danger pour les entreprises françaises ?
- David Ruzié, À propos de la notion d’expectative légitime des agents d’une organisation internationale
- Valérie Pironon, Dits et non-dits sur la méthode de la focalisation dans le contentieux - contractuel et délictuel - du commerce électronique
Thursday, December 15, 2011
Contemporary reality is confoundingly complex: it is marked by rapidly evolving technologies, increasing global interconnectedness, rising population, and deepening understanding of science and the environment. New international actors; changes in social, economic, and political dynamics; a multipolar power structure; and novel security threats only add to the complexity. Amidst this confusion, international law can be a source of order and clarity. It can provide frameworks to peacefully resolve disputes, regulate relations between different actors, and clarify rights and obligations. It can foster technological development and facilitate exchanges of knowledge and goods. It is no surprise that managing global financial crises, protecting global commons, responding to conflicts spilling across borders, and guaranteeing public health and safety have all been added to international law’s purview. In our crowded, connected world, civil uprisings, financial collapses, natural and human-caused disasters are no longer domestic crises: they are global crises.
While international law has at times been quite creative in response to these problems, whether it is fully up to the task remains an open question. International law can actually exacerbate complexity with conflicting or unclear rules, uncertain enforcement, and overlapping and competing jurisdiction. International law must demonstrate the flexibility to embrace new issues, to look beyond the State, and to integrate new players (who may not follow its rules). Transparency, accountability, and participation must be guaranteed in new private regulatory regimes, shorn from State control. The instruments and processes of international law must provide means for scientific evidence to be sifted, understood, and translated into law. And yet, even as it adapts, international law must also remain a force for stability and predictability.
Which problems is international law particularly well-suited to solve? Which seem to defy its regulation? What tools does international law have to manage this complexity? Where are best practices emerging? What has our profession learned in the last half-century? Is law, with its emphasis on rules and stability, conceptually and functionally capable of responding to the challenges of complexity? If not, how should law react? What do experts from outside the legal profession, from technology, finance, counterinsurgency, climate science, and risk, believe law can add? During the 2012 ASIL Annual Meeting we will address these questions and discuss how international law responds to complexity.
- Nathalie Voser, Overview of the Most Important Changes in the Revised ICC Arbitration Rules
- Annex: Article Numbers of the 2012 ICC Rules as Compared to the Article Numbers of the 1998 ICC Rules
- Simon Gabriel, Dealing With “Challenged Documents”
- Walid Ben Hamida, L’arbitrage et le nouveau contexte politique en Tunisie
- P. Gerber, A. Gargett, & M. Castan, Does the Right to Birth Registration Include a Right to a Birth Certificate?
- R. Kicker, M. Möstl, & E. Lantschner, Reforming the Council of Europe’s Human Rights Monitoring Mechanisms
- T. Soboka Bulto, Towards Rights-Duties Congruence: Extraterritorial Application of the Human Right to Water in the African Human Rights system
- Charlotte Wilhelm, Die Rechtsbehelfe des Käufers bei Nichterfüllung nach dem Vorschlag der Europäischen Kommission für eine Verordnung über ein Gemeinsames Europäisches Kaufrecht (KOM (2011) 635 endg.)
- Dossier spécial : Le panel d'inspection de la banque mondiale à l'âge de la maturité. Quelques éléments d'évaluation
- P. Klein, Introduction
- J. Spanoudis, L'accès des individus au panel d'inspection : faux semblant ou réalité ?
- G. Dusepulchre, Le panel d'inspection jouit-il de l'indépendance nécessaire pour contrôler les agissements de la Banque mondiale ?
- R. Gallert, L'accountability, un concept adapté aux organisations internationales ?
- M. Alie, Spécificité de la procédure devant la Cour pénale internationale : Analyses et réflexions relatives à la place préliminaire du procès verbal
- M. Flakowska, L'interaction entre la Cour pénale internationale et le Conseil de sécurité en matière d'agression à l'issue de la Conférence de révision du Statut de Rome
- A.C. Hatton, R. Ouellet, & L. Letourneau, Du rôle de la genèse dans l'exégèse : pour une interprétation historiquement éclairée de l'exception de moralité publique du GATT
Wednesday, December 14, 2011
Non-state actors, including terrorist groups, regularly launch attacks against states, often from external bases. When a victim state seeks to respond with force to those attacks, it must decide whether to use force on the territory of another state with which it may not be in conflict. International law traditionally requires the victim state to assess whether the territorial state is "unwilling or unable" to suppress the threat itself. Only if the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test's lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a time when trans-national armed violence is pervasive.
This Article provides the first sustained descriptive and normative analysis of the test. Descriptively, it explains how the "unwilling or unable" test arises in international law as part of a state's inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test's deep roots in neutrality law, while simultaneously illustrating the lack of guidance about what inquiries a victim state must undertake when assessing whether another state is "unwilling or unable" to address a particular threat. Normatively, the Article plumbs two centuries of state practice to propose a core set of substantive and procedural factors that should inform the "unwilling or unable" inquiry. It then applies those factors to a real-world example – Colombia's use of force in Ecuador in 2008 against the Revolutionary Armed Forces of Colombia – to explore how the use of these factors would affect the involved states' decision-making and the evaluation by other states of the action's legality. The Article argues that the use of these factors would improve the quality of state decision-making surrounding the use of force in important substantive and procedural ways.
Liste: Völkerrecht-Sprechen: Die Konstruktion demokratischer Völkerrechtspolitik in den USA und der Bundesrepublik Deutschland
Wenn Demokratien in den Krieg ziehen, wissen Sie das Recht auf ihrer Seite. Gleiches gilt, wenn sie den Krieg verurteilen. Doch was ist, wenn Demokratien unterschiedliche Rechtspositionen zu ein und demselben Krieg beziehen?
Der Autor zeigt, wie sich die Positionen in den Zentren politischer Macht selbst in Fragen der völkerrechtlichen Haltung zu Ereignissen wie dem Irakkrieg nicht mehr isoliert von ihrer gesellschaftlichen Umwelt bestimmen lassen. Über das zunehmend auch in den öffentlichen Diskursen der Medien konstruierte Verhältnis von Politik, Recht und Demokratie werden Felder gesellschaftlichen Sinns erzeugt, die sich bei der Formulierung völkerrechtlicher Positionen nicht ignorieren lassen und durch Regierungen oft nicht ignoriert werden. Dennoch variieren die Muster der hergestellten Bezüge zwischen Völkerrecht und dem jeweiligen demokratischen Selbstverständnis ganz erheblich, wie die Arbeit in einem Vergleich deutscher und US-amerikanischer Diskurse verdeutlicht. Zu den contra-intuitiven Ergebnissen gehört die Einschätzung, dass die Deutschen als Demokraten womöglich die besseren Völkerrechtler sind, aber die Amerikaner als Völkerrechtler die besseren Demokraten.
Conventional wisdom holds that the creation of international, court-like institutions helps countries to peacefully settle trade conflicts, thereby enhancing overall welfare. Others, however, point out that these institutions remain ultimately ineffective, because they merely reflect the distribution of power in the anarchic international system. We explore how litigation in the WTO affects bilateral trade between countries involved in a trade dispute. We find that sectoral exports from complainant countries to the defendant increase by about $9.5 billion in the three years after a panel ruling. However, countries that have proactively filed a complaint and carried the main costs of litigation do not systematically gain more than less active third parties that merely joined an existing WTO dispute and carried smaller litigation costs. We conclude that international judicial institutions create incentives for freeriding, but at the same time may lead to a less power-based distribution of the gains from trade.
Tuesday, December 13, 2011
- Roda Mushkat, State Reputation and Compliance with International Law: Looking through a Chinese Lens
- Sienho Yee, The Presidency of the International Tribunal for the Law of the Sea and the "National State Extension" Concern
- Dire Tladi & Gillian Taylor, On the Al Qaida/Taliban Sanctions Regime: Due Process and Sunsetting
- Nils Goeteyn & Frank Maes, Compliance Mechanisms in Multilateral Environmental Agreements: An Effective Way to Improve Compliance?
- Juan He, Developing Countries' Pursuit of an Intellectual Property Law Balance under the WTO TRIPS Agreement
- Notes on Courts and Tribunals
- Philippe Gautier, The International Tribunal for the Law of the Sea: Activities in 2010
- Luca G. Radicati di Brozolo, The Impact of National Law and Courts on International Commercial Arbitration: Mythology, Physiology, Pathology, Remedies and Trends
- Stéphanie Bellier, À propos de juridictions internationales statuant à titre arbitral
- Luiz Olavo Baptista & Sílvia Julio Bueno de Miranda, Arbitration Agreement and Choice-of-Law Clause: A Brazilian Law Perspective
- Christian Joerges, Poul F. Kjaer, & Tommi Ralli, A New Type of Conflicts Law as Constitutional Form in the Postnational Constellation
- Agustín José Menéndez, United They Diverge? From Conflicts of Law to Constitutional Theory
- Florian Rödl, Democratic Juridification Without Statisation: Law of Conflict of Laws Instead of a World State
- Marc Amstutz, The Opium of Democracy: A Comment on Florian Rödl's Theory of Democratic Juridification without Statisation
- Poul F. Kjaer, The Political Foundations of Conflicts Law
- Martin Herberg, Global Governance and Conflict of Laws from a Foucauldian Perspective: The Power/Knowledge Nexus Revisited
- Michelle Everson, The Limits of the 'Conflicts Approach': Law in Times of Political Turmoil
Within days of Madeleine Albright's confirmation as U.S. ambassador to the United Nations in 1993, she instructed David Scheffer to spearhead the historic mission to create a war crimes tribunal for the former Yugoslavia. As senior adviser to Albright and then as President Clinton's ambassador-at-large for war crimes issues, Scheffer was at the forefront of the efforts that led to criminal tribunals for the Balkans, Rwanda, Sierra Leone, and Cambodia, and that resulted in the creation of the permanent International Criminal Court. All the Missing Souls is Scheffer's gripping insider's account of the international gamble to prosecute those responsible for genocide, war crimes, and crimes against humanity, and to redress some of the bloodiest human rights atrocities in our time.
Scheffer reveals the truth behind Washington's failures during the 1994 Rwandan genocide and the 1995 Srebrenica massacre, the anemic hunt for notorious war criminals, how American exceptionalism undercut his diplomacy, and the perilous quests for accountability in Kosovo and Cambodia. He takes readers from the killing fields of Sierra Leone to the political back rooms of the U.N. Security Council, providing candid portraits of major figures such as Madeleine Albright, Anthony Lake, Richard Goldstone, Louise Arbour, Samuel "Sandy" Berger, Richard Holbrooke, and Wesley Clark, among others.
- Volume 350
- W. van Gerven, Plaidoirie pour une nouvelle branche du droit: le «droit des conflits d’ordres juridiques» dans le prolongement du «droit des conflits de règles» (conférence inaugurale)
- A. Bonomi, Successions internationales: conflits de lois et de juridictions
- B.H. Oxman, Idealism and the Study of International Law (Inaugural Lecture)
Monday, December 12, 2011
von Bogdandy: The European Lesson for International Democracy: The Significance of Articles 9 to 12 EU Treaty for International Organizations
This text argues that Articles 9 to 12 of the EU Treaty provide a promising way to conceptualize and develop the democratic legitimation of international organizations. To be sure, the current European Union is not a democratic showcase. However, an innovative concept of democracy, neither utopian nor apologetic, has found its way into its founding treaty. It can point the way in conceiving and developing the democratic credentials not just of the EU, but of public authority beyond the state in general. Since comparison is a main avenue to insight, this piece will present those articles and show what lessons can be learnt for international organizations.
- Changing Patterns of War
- John F. Murphy, Mission Impossible? International Law and the Changing Character of War
- Wolff Heintschel von Heinegg, Asymmetric Warfare – How to Respond?
- Dale Stephens, The Age of Lawfare
- Cyber Operations
- Sean Watts, Low-Intensity Computer Network Attack and Self-Defense Sean Watts
- Michael N. Schmitt, Cyber Operations and the Jus in Bello: Key Issues
- Warnings and Detentions
- Pnina Sharvit Baruch & Noam Newman, Warning Civilians Prior to Attack under International Law – Theory and Practice
- Robert M. Chesney, Who May be Held? Military Detention Through the Habeas Lens
- Special Supplement
- Yoram Dinstein, Autonomy Regimes and International Law
von Staden: Democratic Legitimacy of Judicial Review Beyond the State: Normative Subsidiarity and Judicial Standards of Review
Judicial review of the acts of national governments by courts beyond the state raises the question of the democratic legitimacy of such review. In this paper, I outline a position that identifies the ideal of self-government as the core of democracy and argue that in order to be democratically legitimate, judicial review by international courts must be guided by the principle of “normative subsidiarity.” Normative subsidiarity recognizes the legitimate exercise of decision-making authority by national governments in specific contexts as an appropriate instantiation of self-government at that level and, as a result, requires international courts to exercise some deference through appropriately defined judicial standards of review. While a number of international courts have already adopted appropriately deferential standards, I argue that all courts and tribunals engaged in judicial review beyond the state need to address the demands of normative subsidiarity if they want to enhance their specifically democratic legitimacy.
The last decade of the twentieth century saw the revival of global efforts aimed at attacking some of the most atrocious crimes to mankind. Legal initiatives to prevent genocide, war crimes and crimes against humanity (international crimes)and to punish those most responsible for them took shape at international, regional and national levels.
These commendable legal developments had considerable shortcomings in dealing with victims of international crimes. Victims’ suffering and needs were hardly considered a priority. The establishment of the International Criminal Court changed this to some extent, providing a more comprehensive framework towards addressing victims’ needs through a criminal justice approach.
The peculiar situation of victims of international crimes calls for a holistic approach that links various relevant fields like traumatic stress, the social psychology of group conflict and resolution and the psychology and sociology of legal processes. The latter is important in its own right, but also for the ongoing efforts in transitional and international criminal justice, as it can provide the empirical underpinning of the choices and developments in these fields.
Transcending the disciplinary divisions in the study of victims of international crimes is the main focus of this first volume of essays contributing to developing victimological approaches to international crimes. Focusing on the African continent, scholars from different disciplines review the similarities and differences between victims of ordinary crimes and those of genocide, war crimes and crimes against humanity. As victimological research has mainly focused on the former crimes, the volume provides a much-needed and comprehensive overview of the intricacies of victimisation by international crimes. This endeavour transcends academic interest, as an approach of this kind is essential to mend societies ravaged by genocide, war crimes and/or crimes against humanity.
Sunday, December 11, 2011
The Domestic Politics of International Trade considers the issues surrounding intellectual property rights in international trade negotiations in order to examine the challenges posed to domestic policy-makers by the increasingly broad nature of Free Trade Agreements (FTAs). Throughout the book the author demonstrates the importance of domestic politics in understanding the nature and outcome of international negotiations, particularly as they relate to international economic diplomacy.
The book looks in detail at the intellectual property negotiations which formed part of the US-Peru and US-Colombia Free Trade Agreements and analyses the extent to which public health authorities and other parties affected by the increased levels of intellectual property protection were integrated into the negotiation process. The book then juxtaposes these findings with an analysis of the domestic origins of US negotiation objectives in the field of intellectual property, paying particular attention to the role of the private sector in the development of these objectives. Based on a substantial amount of empirical research, including approximately 100 interviews with negotiators, capital based policy-makers, private sector representatives, and civil society organisations in Lima, Bogotá and Washington, DC, this book offers a rare account of different stakeholders’ perceptions of the FTA negotiation process. Ultimately, the book succeeds in integrating the study of domestic politics with that of international negotiations.