This Article challenges the conventional view of contemporary international adjudication. It identifies a new generation of international tribunals, which has been largely ignored by commentators, and argues that these tribunals offer a highly successful, alternative model to traditional public-international-law adjudicatory bodies.
The proliferation of international tribunals is widely regarded as one of the most significant developments in international law over the past century. The subject has given rise to an extensive and robust body of academic commentary. Although commentators reach widely divergent conclusions about many aspects of international law and adjudication, they all agree that international tribunals differ fundamentally from national courts. In particular, according to the commentary, international tribunals such as the International Court of Justice lack the power to render enforceable decisions or to exercise compulsory jurisdiction.
This Article argues that commentators have proceeded from a flawed and incomplete understanding of contemporary international adjudication. Virtually all commentary on the subject ignores the development of a second generation of international tribunals, best represented by international commercial and investment tribunals, World Trade Organization panels, and claims-settlement mechanisms. Contrary to the conventional wisdom about international adjudication, this new generation of international tribunals has the power to exercise what is effectively compulsory jurisdiction and to render enforceable decisions that can often be coercively executed against states and their commercial assets.
These second-generation tribunals have been the most frequently used and, in many respects, the most successful form of international adjudication in recent decades. The caseloads of these tribunals have grown rapidly over the past forty years and now substantially exceed those of traditional public-international-law tribunals. Moreover, an analysis of state treatymaking practice over recent decades shows that states have virtually never concluded treaties accepting the jurisdiction of traditional first-generation tribunals—concluding less than one treaty per year—whereas they have frequently accepted the jurisdiction of second-generation tribunals capable of rendering enforceable decisions—accepting some fifty treaties per year. More fundamentally, second-generation tribunals have played an essential role in facilitating international trade, finance, and investment; have contributed to the development of important fields of international law; and have provided leading contemporary examples of international law working in practice.
Although largely ignored by the commentary, the success and frequent use of second-generation tribunals have important implications for conventional analysis of international adjudication. The success of these tribunals flatly contradicts the claims, advanced by a number of academic commentators, that international adjudication is unimportant in contemporary international affairs and that states do not use international tribunals—particularly tribunals that would be effective. In reality, second-generation tribunals have been frequently and successfully used in vitally important fields, in part because they issue effective and enforceable decisions. At the same time, the success of second-generation tribunals also contradicts prescriptions, offered by a number of commentators, that future international tribunals be modeled on “independent” first-generation tribunals or, alternatively, on entirely “dependent” adjudicative mechanisms. Successful second-generation tribunals exhibit a blend of structural characteristics that defy blanket prescriptions for either “independence” or “dependence” and that counsel for more tailored, nuanced institutional designs.
Saturday, January 21, 2012
Friday, January 20, 2012
With some relatively minor exceptions international humanitarian law (IHL) applies only when a certain threshold is met: the existence of an armed conflict or belligerent occupation. The purpose of this chapter is to explore the many difficulties surrounding the classification of armed conflicts in modern IHL. While the two main archetypes – international armed conflict (IAC) and non-international armed conflict (NIAC) – are reasonably clear in their basic forms, their boundaries are complex and obscure. Many recent conflicts do not fit the classical archetypes well, provoking debates on spill-over, internationalized, mixed or hybrid and even transnational armed conflicts.
The chapter strives to show that there are some differences between IACs and NIACs that cannot be erased simply by reasoning from analogy or from moral imperative, and that therefore the classification of armed conflict is an issue that matters and will continue to matter for the considerable future. The principal goal of the chapter is clarity, clarity in a conceptual and doctrinal framework which can enable legal and policy debates to be properly had and argued without their participants talking past each other. In attempting to advance such clarity, the chapter discusses the framework of war and peace in classical international law, the conceptual revolution brought about by the aftermath of the Second World War, and finally the modern law, by developing a comprehensive taxonomy of armed conflict.
Fidler: Risky Research and Human Health: The Influenza H5N1 Research Controversy and International Law
Crimes of atrocity have profound and long-lasting effects on any society. The difference between triggering and preventing these tragic crimes often amounts to the choice between national potential preserved or destroyed. It is also important to recognise that they are not inevitable: the commission of these crimes requires a collective effort, an organisational context, and long planning and preparation. Thus, the idea of strengthening preventative action has taken on greater relevance, and is now encompassed in the emerging notion of 'responsibility to prevent'. International courts and tribunals contribute to this effort by ending impunity for past crimes. Focusing investigations and prosecution on the highest leadership maximises the impact of this contribution. The ICC has an additional preventative mandate which is fulfilled by its timely intervention in the form of preliminary examinations. Moreover, when situations of atrocity crimes are triggered, its complementarity regime incentivises states to stop violence and comply with their duties to investigate and prosecute, thus strengthening the rule of law at the national level. The new role granted to victims by the Rome Statute is key to the ICC´s successful fulfilment of these functions. This new book of essays, which includes the author's unpublished inaugural lecture at Utrecht University, examines these issues and places particular emphasis on the additional preventative mandate of the ICC, the ICC complementarity regime, the new role granted to victims, and the prosecution of the highest leadership through the notion of indirect perpetration.
Cassel: Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan
Grounds of Judgment reopens the question of consular jurisdiction and extraterritoriality in China and Japan. The book combines recent findings in Qing history on the nature of ethnicity and law with the history of the treaty ports in both China and Japan, especially Shanghai, Yokohama and Nagasaki. Extraterritoriality was not implanted into East Asia as a ready-made product, but developed in a dialogue with local precedents, local understandings of power, and local institutions, which are best understood within the complex triangular relationship between China, Japan and the West. A close reading of treaty texts and other relevant documents suggests that a Qing institution for the adjudication for Manchu-Chinese disputes served as the model for both the International Mixed Court in Shanghai and the extraterritorial arrangements in Sino-Japanese Treaty of Tianjin in 1871. The adaptability of Qing legal procedure provided for a relatively seamless transition into the treaty port era, which would have momentous consequences for China's national sovereignty in the twentieth century. There was no parallel to this development in the Japanese case. Instead, Japanese authorities chose not to integrate consular courts and mixed courts into the indigenous legal order, and as a consequence, consular jurisdiction remained an alien body in the Japanese state, and Japanese policymakers were determined to keep it that way.
Thursday, January 19, 2012
Textbooks on international law, dicta of the International Court of Justice and the International Law Commission's 'Guiding Principles applicable to unilateral declarations of states capable of creating legal obligations' of 2006, all reflect the fact that in international law a state's unilateral declaration can create a legally binding obligation. Unilateral declarations are common, as a look at the weekly headlines of any major newspaper will reveal. Many of the declarations made at the highest level are, of course, vaguely expressed and carry no tangible legal commitment. But others deliver a very clear message: for instance the US's April 2010 declaration on its future use of nuclear weapons or Kosovo's declaration of independence and pledge to follow the Ahtisaari Plan, are two recent and prominent examples of unilateral declarations at the international level.
The same sources, however, also reveal that while state promises are accepted as a means for states to create full blown legal commitments, the law governing such declarations is far from clear. This monograph fills a gap in international legal scholarship by raising and answering the question of the precise legal value of such pledges in the realm of public international law.
After a brief introduction state promises in international law are defined and contrasted with other unilateral acts of states, and the history of promises in state practice and court decisions is delineated, together with scholarly opinion. The book then provides a detailed picture of the international legal framework governing promises of states, and ends with a brief assessment of the raison d'être for promises as a binding mechanism in international law, along with their advantages and disadvantages in comparison with the classical mechanism for assuming international obligations - the international treaty.
This is currently the only book to present a comprehensive overview of the legal effect of promises by states in international law.
This paper addresses treaty interpretation in the context of international organizations, with particular attention to interpreting the founding or constitutive treaties of organizations. That not all interpretive rules are the same for all treaties is a well-tried proposition (see e.g. Arnold McNair in BYIL 1930 and Joseph Weiler in EJIL 2010). The interest in different canons of treaty interpretation generally hinges on the distinction of interpretative practices for different areas of substantive law, such as investment treaties, or human rights treaties. What has been arguably under theorized is that interpretation of the rules of organizations begs an additional question which does not arise with other treaties, that is: whether interpretation of a treaty is even at issue. In other words, are UN Security Council resolutions a form of treaty law or do they amount to ‘international legislation’? Was the 1999 new ‘strategic concept’ of NATO a (highly ‘evolutive’) interpretation of the 1949 North Atlantic Treaty or a redefinition of powers and competences by an Organization making use of its compétence de la compétence? In practice it seems these questions are mostly answered by upholding both the treaty character and the institutional law character of such rules.
If and when the law of treaties is applied, interpretive practice vis-à-vis constitutive treaties differs notably from general treaty interpretation on two counts. First, special weight is given to the ‘object and purpose’ of the treaty by way of a general teleological approach to interpretation, rather than as a means to establish the text’s ‘ordinary meaning’ per VCLT Article 31. Secondly, special weight is also given to the subsequent practice of the organization. In contrast, classic interpretive methods that safeguard the State party’s ‘sovereign will’ - such as recourse to the travaux préparatoires, party intention, and the subsequent practice of treaty parties - seem to have faded into the background. I argue that these points of distinction are related to the extra layer of the organization’s legal order over the constituent treaty. Or, put in doctrinal terms: these distinctions reflect a shift from a contractual to an institutional perspective (or even ‘paradigm’) on constitutive treaties. As a result, it is the organization, not the States parties, that ends up taking on any interpretative questions, and application of the classic law of treaties is limited.
- January 25, 2012: Harlan Cohen (Univ. of Georgia – Law), Finding International Law, Part II: Our Fragmenting Legal Community
- February 1, 2012: Anthea Roberts (London School of Economics- Law), Change and Linkage in Investment Treaty Law
- February 8, 2012: Odette Lienau (Cornell Univ. – Law), Rethinking Sovereign Debt: The Politics of Reputation in the Twentieth Century
- February 29, 2012: Nico Krisch (Hertie School of Governance), Pluralism and Global Public Goods
- March 21, 2012: Doreen Lustig (New York Univ. – Law), History of Responsibility of Corporations in International Law
- April 4, 2012: Martti Koskenniemi (Univ. of Helsinki - Law)
- April 17, 2012: Horatia Muir Watt (SciencesPo), Global Governance and Private International Law
- April 18, 2012: Armin von Bogdandy (Max Planck Institute for Comparative Public Law and International Law) & Matthias Goldmann (Max Planck Institute for Comparative Public Law and International Law), Sovereign Debt
Wednesday, January 18, 2012
Nguefang: Principe de précaution et la responsabilité internationale dans le mouvement transfrontière des OGM
Les biotechnologies comportent de nombreux avantages, en particulier, dans les industries alimentaire, pharmaceutique et même forestière. Leur innocuité n’est pourtant pas assurée. C’est pourquoi elles suscitent de légitimes inquiétudes.
La réglementation internationale des activités qui en relèvent s’efforce de concilier les intérêts des industriels avec les exigences liées à la protection de l’environnement et de la santé publique.
Le Protocole international sur la prévention des risques biotechnologiques s’inscrit dans cette logique. Elaboré dans le prolongement de la Convention des Nations Unies sur la diversité biologique, il régit le transfert, la manipulation et l’utilisation des organismes génétiquement modifiés.
Le présent ouvrage qui prend en compte les dimensions historique, politique, juridique et scientifique des biotechnologies montre que cette réglementation ne peut se limiter à un régime de prévention. Le principe de responsabilité doit y jouer un rôle essentiel. En effet, le principe de précaution n’offre pas une garantie d’absence totale de faits dommageables pour l’environnement et la santé humaine. Des mécanismes de responsabilité sont nécessaires pour réparer d’éventuels préjudices. Principe de précaution et responsabilité ne sont pas antinomiques mais dans un rapport nécessaire de complémentarité.
L’ouvrage présente une réflexion originale dans un domaine encore peu exploré par les juristes malgré son actualité. Appuyé sur des analyses précises, il apporte ainsi des réponses pratiques de nature à intéresser tant les pouvoirs publics que les industriels, les scientifiques et les praticiens du droit.
- Cedric Ryngaert, The Legal Status of the Holy See
- Current Developments in International Law
- Marie-José Domestici-Met, Protecting in Libya on Behalf of the International Community
- Sebastian Wuschka, The Use of Combat Drones in Current Conflicts – A Legal Issue or a Political Problem?
- GoJIL Focus: The Legacy of the ICTY
- Donald Riznik, Completing the ICTY Project Without Sacrificing its Main Goals. Security Council Resolution 1966 – A Good Decision?
- Gabrielle McIntyre, The International Residual Mechanism and the Legacy of the International Criminal Tribunals for the former Yugoslavia and Rwanda
- Mia Swart, Tadic Revisited: Some Critical Comments on the Legacy and the Legitimacy of the ICTY
- Frédéric Mégret, The Legacy of the ICTY as Seen Through Some of its Actors and Observers
- Michael G. Karnavas, The ICTY Legacy: A Defense Counsel’s Perspective
- Giovanna Maria Frisso, The Winding Down of the ICTY: The Impact of the Completion Strategy and the Residual Mechanism on Victims
Tuesday, January 17, 2012
- Michael E. Schneider, The revision of the UNCITRAL Arbitration Rules. Some observations on the process and the results
- Timothy G. Nelson, When the Lights Went Out : The Strange Death and Stranger Afterlife of the Barcelona Traction Case
- Julia-Didon Cayr, Procédure judiciaire de Discovery en droit américain – Article 1782, Titre 28 de l’United States Code – et arbitrage international
While the lives of millions of people are overshadowed by poverty and destitution, a relatively small subset of the world's population enjoys an unprecedented level of wealth. No doubt the world's rich have duties to address the plight of the global poor. But should we think of these as duties of egalitarian justice much like those applying domestically, or as weaker duties of humanitarian assistance? In this book, Laura Valentini offers an in-depth critique of the two most prominent answers to this question, cosmopolitanism and statism, and develops a novel normative framework for addressing it. Central to this framework is the idea that, unlike duties of assistance - which bind us to help the needy - duties of justice place constraints on the ways we may legitimately coerce one another. Since coercion exists domestically as well as internationally, duties of justice apply to both realms. The forms of coercion characterizing these two realms, however, differ, and so the content of duties of justice varies across them. Valentini concludes that given the nature of existing international coercion, global justice requires more than statist assistance, yet less than full cosmopolitan equality.
- Paul Blyschak, State-Owned Enterprises and International Investment Treaties: When are State-Owned Entities and their Investments Protected?
- Yuan Ji, Crafting a Multilateral Solution for North Korean Refugee Settlement: What American Policymakers can learn from the Indochinese Refugee Crisis
- Wojtek Mackiewicz Wolfe & Annette S. Leung Evans, China's Energy Investments and the Corporate Social Responsibility Imperative
Monday, January 16, 2012
Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a 'right to have rights'. The right to have rights was the right to citizenship-to membership of a political community. Since then, and especially in recent years, theorists have continued to grapple with the meaning of the right to have rights. In the context of enduring statelessness, mass migration, people flows, and the contested nature of democratic politics, the question of the right to have rights remains of pressing concern for writers and advocates across the disciplines.
This book provides the first in-depth examination of the right to have rights in the context of the international protection of human rights. It explores two overarching questions. First, how do different and competing conceptions of the right to have rights shed light on right bearing in the contemporary context, and in particular on concepts and relationships central to the protection of human rights in public international law? Secondly, given these competing conceptions, how is the right to have rights to be understood in the context of public international law? In the course of the analysis, the author examines the significance and limits of nationality, citizenship, humanity and politics for right bearing, and argues that their complex interrelation points to how the right to have rights might be rearticulated for the purposes of international legal thought and practice.
Rwanda's Gacaca courts provide an innovative response to the genocide of 1994. Incorporating elements of both African dispute resolution and of Western-style criminal courts, Gacaca courts are in line with recent trends to revive traditional grassroots mechanisms as a way of addressing a violent past. Having been devised as a holistic approach to prosecution and punishment as well as to healing and repairing, they also reflect the increasing importance of victim participation in international criminal justice.
This book critically examines the Gacaca courts' achievements as a mechanism of criminal justice and as a tool for healing, repairing, and reconciling the shattered communities. Having prosecuted over one million people suspected of crimes during the 1994 genocide, the courts have been both praised for their efficiency and condemned for their lack of due process. Drawing upon extensive observations of trial proceedings, this book is the first to provide a detailed analysis of the Gacaca legislation and its practical implementation. It discusses the Gacaca courts within the framework of transitional and international criminal justice and argues that, despite the trend towards local, tailor-made solutions to the challenges of political transition, there is a common set of principles to be respected in addressing the past. Evaluating the Gacaca courts against the backdrop of existing or emerging principles, such as the duties to investigate and prosecute, and the right to the truth, the book provides a sophisticated critique of Rwanda's reconciliation policy. In doing so, it contributes to the development and the clarification of these principles. It concludes that Gacaca courts have achieved a great deal in stimulating a basic discourse on the genocide, but they have also contributed to assigning collective responsibility and may thus end up deepening the divides within Rwandan society.
- Mitsuo Matsushita, Export Controls of Natural Resources and the WTO/GATT Disciplines
- Thomas A. Faunce, Will International Trade Law Inhibit or Promote Global Artificial Photosynthesis?
- Henry Gao, Google's China Problem: A Case Study on Trade, Technology and Human Rights Under the GATS
- Yahong Li, Intellectual Property and Public Health: Two Sides of the Same Coin
- Yanning Yu, China's Adopting Emergency Safeguard Measures for Services: A Political Economy Analysis
- Hsien Wu, The Effect of Technology Development on the Decision of Physical Property/Nature and End Use for Determining "Like Product" Under the GATT
Co-published by Oxford University Press and the International Law Institute, and prepared by the Office of the Legal Adviser at the Department of State, the Digest of United States Practice in International Law presents an annual compilation of documents and commentary highlighting significant developments in public and private international law, and is an invaluable resource for practitioners and scholars in the field.
Each edition compiles excerpts from documents such as treaties, diplomatic notes and correspondence, legal opinion letters, judicial decisions, Senate committee reports and press releases. Each document is selected by members of the Legal Adviser's Office of the U.S. Department of State, based on their judgments about the significance of the issues, their potential relevance to future situations, and their likely interest to scholars and practitioners. In almost every case, the commentary to each excerpt is accompanied by a citation to the full text.
The 2010 edition of the Digest covers various developments that occurred during the course of the year, including issues relating to the active engagement of the U.S. with the International Criminal Court and the first full year of U.S. participation as a member of the Human Rights Council. Also discussed is U.S. involvement with notable treaties (including the New START Treaty and the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance, to both of which the U.S. Senate gave its advice and consent to ratification during 2010). Other subjects covered include U.S. activities at the United Nations and important judicial decisions from 2010.
- Nicolas Bratza, The Relationship Between the UK Courts and Strasbourg
- Baroness Hale, Common Law and Convention Law: The Limits to Interpretation
- David Anderson, The Independent Review of Terrorism Legislation
- David Mead, "Don't make us get a warrant... we only want a quick look in your husband's shed": The Article 8 Issues Raised by the Domestic Legal Framework on Police Entries and Searches by Consent
- Max Schaefer, Al-Skeini and the Elusive Parameters of Extraterritorial Jurisdiction
Sunday, January 15, 2012
“International Law and Disasters”
The Fourth International Four Societies Conference
Call for Papers
The international law societies of Australia & New Zealand, Canada, Japan and the United States of America (the “Four Societies”) have held three conferences bringing together younger scholars around a theme often resulting in a scholarly volume (Wellington, New Zealand in 2006; Edmonton, Canada in 2008; and Awajishima, Japan in 2010).
The Four Societies are organizing a Fourth Joint Conference and invite paper proposals from their members. The Four Societies Conference will be held September 27 to 29, 2012 in Berkeley, California at the Claremont Resort. The theme of the Fourth Joint Conference will be “International Law and Disasters.” The Steering Committee for the Meeting invites paper proposals from the members of these four societies.
The Theme of International Law and Disasters
Few aspects of the future are certain. Yet, it is certain that catastrophes, attended by widespread suffering, are a part of our collective future. No one will be surprised to wake tomorrow to learn of an earthquake, an accident at a nuclear power plant, or the desperate plight of persons fleeing chaos. Data indicate that a significant natural disaster occurs on average once a week. Every three weeks, there is a disaster that exceeds the response capacities of the country most affected. Damages inflicted by disasters kill one million people each decade and leave millions more homeless. Economic damages from natural disasters have tripled in the last thirty years. All of these statistics tend to increase with a growing population and it is argued by many that climate change will increase the intensity of some types of disasters.
Curiously, however, the international legal order addressing this certain future is, in comparison to other far less certain areas of international affairs, both relatively undeveloped in practice and unexamined in the academic legal literature. Efforts from the bottom up by groups of States develop haphazardly. Driven today by one disaster, tomorrow by another, the ad hoc incoherence of legal and institutional response mirrors the fortuity of the catastrophes humanity encounters. The resulting fragmented ad hoc array of responses leaves many holes in the collective effort and often leads assistance amidst an emergency to be as likely a matter of luck as of planning. Simultaneously, the efforts from the top down by international organizations and their member States to comprehensively confront this challenge easily spin into ever-broader discussions, sweeping in so many initiatives and efforts that the sheer weight of the agenda seems to impede progress. Similarly, the scholarly attention to catastrophes, with notable exceptions, is diffuse.
With this situation in mind, the Steering Committee invites paper proposals addressing this broad and multifaceted subject. The proposals may take historical, institutional, political or other perspectives on the theme. The proposals may address a particular type of disaster or address a particular way in which international law bears on the subject of disasters broadly. It is the intent of the organizers that the collected resulting papers form a balanced volume illuminating and progressively advancing the global collective response to this pressing issue.
Submission of Proposals and the Process of Selection
Paper proposals should include a project description not exceeding 500 words and the applicant’s curriculum vitae. Submissions should cover work that has not been previously published. It is the intention of the sponsoring societies to keep the papers together and publish them in one volume. However, if the conference fails to provide an opportunity to publish the presented papers, participants will be free to publish them elsewhere.
Submissions should be sent by e-mail to the Sponsoring Society of which the submitter is a member. Since the underlying goal of this initiative is to foster a scholarly network between individuals associated with the four sponsoring societies, applicants are advised to send their submissions to the sponsoring society with which they are most likely to have a long-term connection, such as through membership in that society, or a university position or employment in the country, or countries, represented by that sponsoring society.
Submissions should be made to the following individuals:
ASIL: Professor David D. Caron ddcaron[at]law.berkeley.edu
ANZSIL: Professor Andrew Byrnes Andrew.Byrnes[at]unsw.edu.au
CCIL: Professor Craig Forsece craig.forcese[at]uOttawa.ca
JSIL: Professor Yuji Iwasawa iwasawa[at]j.u-tokyo.ac.jp
The Deadline for Submission of Proposals is April 1, 2012
Each sponsoring society will select four papers, subject to the review and approval of the Steering Committee comprising members from the Four Societies. Preference will be given to papers by those who are in the early stages of their careers. Additional preference will be given to innovative and cutting edge proposals related to International Law and Disasters. The selected participants will be notified in May 2012. Each participant will submit a full paper to the organizers by 31 August for distribution to the other participants.
Transportation to the venue will be subject to arrangement between each sponsoring organization and its conference participants. Lodging and meals at the venue during the conference will be provided by the American Society of International Law. The working language of the Conference will be English.