Saturday, February 11, 2012
Friday, February 10, 2012
- Roberto Belloni & Anna K. Jarstad, Introducing Hybrid Peace Governance: Impact and Prospects of Liberal Peacebuilding
- Global Insights
- Vanessa Wyeth, Knights in Fragile Armor: The Rise of the “G7+”
- Chetan Kumar & Jos De la Haye, Hybrid Peacemaking: Building National “Infrastructures for Peace”
- Roberto Belloni, Hybrid Peace Governance: Its Emergence and Significance
- Keith Krause, Hybrid Violence: Locating the Use of Force in Postconflict Settings
- Francesco Strazzari & Bertine Kamphuis, Hybrid Economies and Statebuilding: On the Resilience of the Extralegal
- Marie-Jöelle Zahar, Norm Transmission in Peace- and Statebuilding: Lessons from Democracy Promotion in Sudan and Lebanon
- Kristine Höglund & Camilla Orjuela, Hybrid Peace Governance and Illiberal Peacebuilding in Sri Lanka
- Anna K. Jarstad & Louise Olsson, Hybrid Peace Ownership in Afghanistan: International Perspectives of Who Owns What and When
- Review Essay
- Dominik Zaum, Beyond the “Liberal Peace”
- L. Biuković & J. Mathis, Enhanced Regulatory Cooperation in the Canada: EU Comprehensive Trade Agreement
- Stanko S. Krstic, Regulatory Cooperation to Remove Non-tariff Barriers to Trade in Products: Key Challenges and Opportunities for the Canada-EU Comprehensive Trade Agreement
- J. Anthony VanDuzer, A Critical Look at the Prospects for Robust Rules for Services in Preferential Trading Agreements
- Jeremy De Beer, Implementing International Trade Agreements in Federal Systems: A Look at the Canada-EU CETA’s Intellectual Property Issues
- James Mathis, Multilateral Aspects of Advanced Regulatory Cooperation: Considerations for a Canada-EU Comprehensive Trade Agreement (CETA)
- Ljiljana Biuković, Transparency Norms, the World Trade System and Free Trade Agreements: The Case of CETA
- Debra P. Steger, Institutions for Regulatory Cooperation in ‘New Generation’ Economic and Trade Agreements
- Laurens J. Ankersmit & Jessica C. Lawrence, The Future of Environmental Labelling: US – Tuna II and the Scope of the TBT
Fach Gómez: Rethinking the Role of Amicus Curiae in International Investment Arbitration: How to Draw the Line Favorably for the Public Interest
The intervention of amicus curiae in investment arbitration is a matter of great interest and it will continue generate a legal debate in the future. In the wake of multiple courts and some tribunals, several rules on investment arbitration have increasingly recognized the possibility that the general interest is protected through amicus submissions. The fact that a party of the investment arbitration is a state and problems transcend the interests of the specific parties involved in the arbitration justify the progressive implementation of the principle of transparency, which has been traditionally rejected in commercial arbitration, in the field of investment arbitration.The acceptance of the institution of amicus curiae in BITs and arbitration rules has resulted recently in various NGOs submitting amicus briefs in relevant international arbitrations. Additionally, UNCITRAL and ICC are currently developing two projects in the field of investment arbitration that are going to address the issue of amicus briefs. Taking all of this data as reference, this Note reflects on the most appropriate regulation of the institution of amicus curiae. This means taking into account a multiplicity of factors, both internal -concerning the content and the submission process- and external -referring to the relationship of these non-parties with other participants in investment arbitration-. The approach taken regarding this regulation is multiple, since the institution of amicus curiae is controversial. Against the multiple benefits preached mainly by NGOs, investors believe that the acceptance of amicus curiae brings various injustices. The proposal advocated by this Note is twofold. On the one hand, the acceptance of unsolicited amicus briefs should be governed by a set of criteria able to block any submission that do not benefit the outcome of arbitration and are excessively detrimental to the parties and arbitrators of the investment dispute. On the other hand, institutions managing investment arbitrations could establish an new institution exclusively and permanently dedicated to defending the collective interest. This proposal, although suggestive, would imply a major change in the system and therefore their perspectives of success would possibly materialize in the medium to long term.
Lors de sa dernière session, la Commission du droit international des Nations Unies a adopté en seconde lecture un project d'articles complet sur la responsibilité des organisations internationales. Le moment est donc apparu particulièrement opportun au CERIC et au Centre de droit international de l'Université Libre de Bruxelles pour proposer un bilan des travaux de la CDI sur cette thématique. Dans cette perspective, les deux Centres organisent une journée d'étude sur ce thème.
This paper looks at the question of direct participation in cyber hostilities under the international law of armed conflict, or international humanitarian law (IHL) as it is also known. The paper examines the history and development of the concept of direct participation in hostilities by civilians, which serves as an exception to the principle of civilian or non-combatant immunity. In charting the development of the concept, this paper looks at landmark attempts to legally define the concept of direct participation, including the Israeli Targeted Killings Case, and the International Committee of the Red Cross (ICRC) study into direct participation. Using this legal background, this paper then analogizes direct participation in the context of cyber hostilities, and critically examines the ways in which civilians may be deemed to be direct participating in cyber hostilities. The paper also posits some solutions to potentially problematic situations raised by civilian participation in cyber warfare.
Thursday, February 9, 2012
- Lea Brilmayer & Isaias Yemane Tesfalidet, Third State Obligations and the Enforcement of International Law
- Ming-Sung Kuo, Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism
- Shana Tabak, False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Colombia
After the European Council announced that it wanted to suppress intermediate measures in the enforcement of foreign judgments within the European Union, the European Commission has proposed to abolish the procedure whereby courts of the Member states may verify whether foreign judgments meet some basic requirements of the forum (exequatur).
The project of abolishing exequatur has attracted strong criticism among European scholars. It has been pointed out that the most important function of exequatur is to verify whether the foreign court did not violate human rights, and that suppressing it would entail dramatically reducing human rights protection in the European Union.
Most of these scholars have dismissed the economic argument made by the European lawmaker to justify its project that the existing procedure, which delays and increases the costs of cross-border debt recovery, is simply too costly. This short paper offers some preliminary thoughts on the efficiency of the exequatur procedure. It argues that as human rights violations are, in practice, almost exclusively violations of procedural rights, the impact of human rights violations is essentially to decrease the chances to win on the merits in cases where the symbolic dimension of the right to a fair trial is negligible. The paper thus distinguishes between two categories of cases and argues that, in commercial and consumer cases, exequatur is clearly too costly and should be abolished, while the situation might be different in tort and labor cases.
- David D. Caron, International Courts and Tribunals: Their Roles amidst a World of Courts
- Martins Paparinskis, MFN Clauses and International Dispute Settlement: Moving Beyond Maffezini and Plama?
- Marcos A Orellana, The Right of Access to Information and Investment Arbitration
- Francisco González de Cossío, Investment Protection Rights: Substantive or Procedural?
- Alexander A. Ekpombang, The Legal Framework of Foreign Investment in Rwanda
- International Legal Theory
- Nathaniel Berman, ‘The Sacred Conspiracy’: Religion, Nationalism, and the Crisis of Internationalism
- Lorenzo Zucca, Shedding Light on the Conspiracy: A Reply to ‘The Sacred Conspiracy: Religion, Nationalism, and the Crisis of Internationalism’
- Jean-Claude Monod, What's New in Our Current ‘International Secularism’?
- Nathaniel Berman, ‘Religion’, Genealogy, History: A Reply to Zucca and Monod
- International Law and Practice
- Jacob Stone, Arbitrariness, the Fair and Equitable Treatment Standard, and the International Law of Investment
- Björn Kunoy, The Terms of Reference of the Commission on the Limits of the Continental Shelf: A Creeping Legal Mandate
- Hague International Tribunals: International Court of Justice
- Cristina Hoss, Santiago Villalpando, & Sandesh Sivakumaran, Nicaragua: 25 Years Later
- Lori Fisler Damrosch, The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?
- Paul S. Reichler, The Impact of the Nicaragua Case on Matters of Evidence and Fact-Finding
- Marcelo Kohen, The Principle of Non-Intervention 25 Years after the Nicaragua Judgment
- International Criminal Court and Tribunals
- James G. Stewart, The End of ‘Modes of Liability’ for International Crimes
- Review Essay
- Martins Paparinskis, Investment Law of/for/before the Twenty-First Century
de Brabandere: P.R.I.M.E. Finance: The Role and Function of the New Arbitral Institution for the Settlement of Financial Disputes in The Hague
The practice and study of human rights litigation in the United States has generally focused on federal courts and federal law. Practitioners and scholars have devoted comparatively little attention to human rights litigation in state courts and under state law. Yet this approach to human rights litigation raises important and difficult questions about federalism, foreign relations, jurisdiction, choice of law, extraterritoriality and litigation strategy that have yet to be systematically explored.
This symposium will bring together leading practitioners and scholars with the goal of improving understanding of the challenging issues raised by human rights litigation in state courts and under state law.
Wednesday, February 8, 2012
The arbitral world is at a crucial point in its historical development, poised between two conflicting conceptions of its nature, purpose, and political legitimacy. Formally, the arbitrator is an agent of the contracting parties in dispute, a creature of a discrete contract gone wrong. Yet, increasingly, arbitrators are treated as agents of a larger global community, and arbitration houses concern themselves with the general and prospective impact of important awards. In this paper, I address these questions, first, from the standpoint of delegation theory. In Part I, I introduce the basic “Principal-Agent” framework [P-A] used by social scientists to explain why actors create new institutions, and then briefly discuss how P-A has been applied to the study of courts. Part II uses delegation theory to frame discussion of arbitration as a mode of governance for transnational business and investment. In Part III, I argue that the International Center for the Settlement of Investment Disputes (ICSID) is presently in the throes of judicialization, indicators of which include the enhanced use of precedent-based argumentation and justification, the acceptance of third-party briefs, and a flirtation with proportionality balancing. Part IV focuses on the first wave of awards rendered by ICSID tribunals pursuant to Argentina’s response to the crushing economic crisis of 2000-02, wherein proportionality emerged, adapted from the jurisprudence of the Appellate Body of the World Trade Organization.
Osthoff: Weiterentwicklung des internationalen Menschenrechtsschutzes unter dem UN-Menschenrechtsrat?
Das Instrumentarium der Vereinten Nationen auf dem Gebiet der Menschenrechte zu stärken, um die effektive Ausübung aller Menschenrechte zu gewährleisten, war das mit der Einsetzung des UN-Menschenrechtsrats verfolgte Ziel. Fünf Jahre später hat der UN-Menschenrechtsrat in der deutschen Rechtswissenschaft noch immer kaum Aufmerksamkeit gefunden. Dabei steht er als Nachfolgeorgan der UN-Menschenrechtskommission, die er 2006 abgelöst hat, nunmehr im Zentrum der politischen Menschenrechtsarbeit der Vereinten Nationen. Insoweit nimmt er durch das Fortschreiben von Standards im Bereich der Menschenrechte sowie Reaktion auf menschenrechtliche Missstände eine wichtige Aufgabe wahr.
Das Werk befasst sich mit diesem für den Bereich des Menschenrechtsschutzes so bedeutsamen Gremium und bietet eine umfassende Darstellung und Analyse des UN-Menschenrechtsrats und seines Kontrollregimes. Dazu ordnet das Werk den UN-Menschenrechtsrat in seinen historischen, rechtlichen und politischen Kontext ein und analysiert seine Neuerungen – stets vor dem Hintergrund der Frage, inwieweit der internationale Menschenrechtsschutz unter dem UN-Menschenrechtsrat eine Weiterentwicklung erfahren hat.
- January 17, 2012: Michael Ramsey (Univ. of San Diego - Law), Two Forms of Argument from Custom
- January 31, 2012: Andrew Spalding (Chicago-Kent Law School), Four Uncharted Corners of Anti-Corruption Law: In search of Remedies to the Sanctioning Effect
- February 14, 2012: Robert Delahunty (Univ. of St. Thomas - Law), Nationalism, Statism and Cosmopolitanism
- February 28, 2012: Christina Davis (Princeton Univ. - Politics and Woodrow Wilson School of Public and International Affairs), tba
- March 27, 2012: Ian Hurd (Northwestern Univ. - Political Science), tba
- April 10, 2012: Paul Stephan (Univ. of Virginia - Law), Courts on Courts: Empathy and Autism in International Encounters
International arbitral tribunals increasingly deal with cases in which the conduct of State entities enjoying separate legal personality harmed foreign investors. The book discusses the attribution of conduct of such entities in international investment law. Their conduct is, opposed to the conduct of actual State organs, not automatically attributable to the State, but only when the requirements of a specific rule of attribution are met. The author analyses these rules of attribution under public international law with the help of the ILC Articles on State Responsibility. Based on this analysis, the author examines the application of these rules in the jurisprudence of investment arbitration. Previous jurisprudence in this field has been relatively inhomogeneous and often lacked a sufficient distinguishing between the different rules of attribution. Concluding, the author argues in favour of strictly distinguishing between the rules and relying on the ILC Articles.
- February 20, 2012: Katia Yannaca-Small (OECD), The Quest for Consistency in International Investment Law and Arbitration: How Realistic and Significant?
- February 27, 2012: Joseph Bell (Hogan Lovells US LLP), A Host Government Perspective
- March 5, 2012: Sophie Nappert (Avocat and Solicitor of the Supreme Court of England and Wales), Dealing in Uncertainty: Scientific Evidence Before Investment Tribunals
- March 19, 2012: Michael Nolan (Milbank, Tweed, Hadley & McCloy), The Dynamic Relationship Between the Customary International Law of Investment Protection and Bilateral Investment Treaties
- March 26, 2012: Surya P. Subedi (Univ. of Leeds - Law), The Problems and Prospects for a Global Comprehensive Treaty on the Regulation of Foreign Investment
- April 2, 2012: Alejandro Garro (Columbia Univ. - Law and Parker School of Foreign and Comparative Law), State Responsibility and Unusual Circumstances
- April 23, 2012: George Bermann (Columbia Univ. - Law), Navigating EU Law and the Law of International Arbitration
- Christopher K. Penny, Obeying Restraints: Applying the Plea of Superior Orders to Military Defendants before the International Criminal Court
- Robin F. Holman, The Rogue Civil Airliner and International Human Rights Law: An Argument for a Proportionality of Effects Analysis within the Right to Life
- Charles Riziki Majinge, Regional Arrangements and the Maintenance of International Peace and Security: The Role of the African Union Peace and Security Council
- Géraud de Lassus Saint-Geniès, Les piliers économique et environnemental du développement durable: conciliation ou soutien mutuel? L’éclairage apporté par la Cour internationale de Justice dans l’Affaire des Usines de pâte à papier sur le fleuve Uruguay (Argentine c Uruguay)
- Notes and Comments
- Drew Tyler, Does the Charter Float? The Application of the Canadian Charter of Rights and Freedoms to Canada’s Policing of High Seas Fisheries
- Daniel H. Meester, The International Court of Justice’s Kosovo Case: Assessing the Current State of International Legal Opinion on Remedial Secession
Tuesday, February 7, 2012
This article answers two of the most urgent and important questions facing the contemporary law of armed conflict. First, how certain must a soldier be that a given individual is a combatant and not a civilian before attacking that individual? Second, what risks must soldiers accept to themselves and to their mission in order to reduce the risk of mistakenly killing civilians?
In the absence of clear legal rules, leading states, scholars, and practitioners have embraced a Balancing Approach according to which both the required level of certainty and the required level of risk vary with the balance of military and humanitarian considerations. However, this article shows that the Balancing Approach ignores the moral asymmetries between killing and letting die and between intentionally and unintentionally killing civilians. As a result, in a wide variety of situations, the Balancing Approach would permit soldiers to intentionally kill individuals who are probably, much more likely, or almost certainly civilians rather than combatants. These implausible implications expose the fatal defects of the Balancing Approach and demonstrate the need for a morally defensible alternative.
To meet this need, this article develops a deontological account of both the required level of certainty and the required level of risk. The first part of this new account, Deontological Targeting, prohibits a soldier from intentionally killing an individual whom she believes is a civilian or whom she does not reasonably believe is a combatant. These constraints establish a minimum threshold of certainty that soldiers must reach before using deadly force. Above the reasonable belief threshold, the required level of certainty varies with the relative costs of error but, crucially, also reflects the moral asymmetry between killing and letting die. In particular, except in rare cases, targeted killing operations against individuals who pose no immediate threat are permissible only if there is conclusive reason to believe that the individuals are combatants.
The second part of this new account, Deontological Precaution, requires, at a minimum, that soldiers take as much risk as necessary to reach the required level of certainty. In addition, soldiers must take further precautions unless doing so would increase the risk to the soldiers substantially more than doing so would decrease the risk to civilians. If soldiers are unwilling or unable to reach the required level of certainty or accept the required level of risk then they must hold their fire.
The article concludes by distilling these complex moral principles into new legal rules, reinterpretations of existing legal rules, and model rules of engagement in which soldiers can be trained and that can guide soldiers through the fog of war.
- Aslı Ü. Bâli, The Perils of Judicial Independence: Constitutional Transition and the Turkish Example
- Sungjoon Cho, Beyond Rationality: A Sociological Construction of the World Trade Organization
- Mehrdad Payandeh, The United Nations, Military Intervention, and Regime Change in Libya
- Marco Ventoruzzo, Like Moths to a Flame? International Securities Litigation After Morrison: Correcting the Supreme Court’s “Transactional Test”
This paper examines the political status and cultural salience in the United States of the law of war during the era of the Vietnam conflict, for the sake of comparison with the post-9/11 centrality of concerns about detention and torture. The main question is why, when the violations of the laws of war were so much worse in the earlier period, they were not the fulcrum of public debate around war. The answer proposed is that the presence of a powerful social movement agitating against the war itself -- which meant concern about aggressive warfare to the extent international law figured in public debate at all -- marginalized concerns about the conduct of war. Even once My Lai came to light, atrocity consciousness fed an antiwar movement. The main groups and figures covered are the Lawyers Committee Concerning American Policy in Vietnam, Richard Falk of Princeton University, and Telford Taylor of Columbia University.
The Symposium will present a set of panels discussing the issues surrounding conflicting legal norms found in the United States and other foreign jurisdictions. As domestic laws continue to extend their reach beyond the borders of a single jurisdiction, the United States and its institutions must confront the question of how to resolve these differences.
Symposium: Precursors to International Constitutionalism: The Development of the German Constitutional Approach to International Law
International constitutionalism is in the focus of contemporary international legal debate and practice, as evidenced by the recent Kadi-Jurisprudence of the European Courts and the burgeoning literature that employs constitutional as well as fragmentation terms with respect to modern international law – dealing with the pluralistic structure of modern international law, post-national law and constitutional pluralism. This seemingly new discourse is all-pervasive, with implications in international politics, law, trade and human rights.
However, this project maintains that this is not an entirely new discourse. Its precursors can be found in what could be considered to be a "German" constitutional approach towards International Public Law (Völkerrecht) that has been characterized by a strong constitutional understanding for centuries. While the roots of the discussion can be traced back to the Eighteenth Century, this has especially been the case in the Twentieth Century, as discernable in German and Austrian teachings, from the scholarship of Albert Verdross (with his 1926 'Verfassung der Völkerrechtsgemeinschaft') to Bardo Fassbender's contemporary analysis of the UN Charter as an international constitution.
The cooperation between the Minerva Center for Human Rights (Hebrew University Jerusalem), the Institute of International and European Law, Georg-August-Universität Göttingen and the Goettingen Journal of International Law (GoJIL) investigate the historical development and gradual crystallization of a "German" constitutional approach in both theoretical and practical aspects. The project also fosters the current debate on modern international law with regard to constitutionalization and fragmentation trends. European constitutional thinking with respect to international law will play a role as well as current ideas of international constitutionalization in international organizations and tribunals, mainly the International Court of Justice, the European Court of Justice, and the WTO.
Monday, February 6, 2012
- E.J. Molenaar, Fisheries Regulation in the Maritime Zones of Svalbard
- Irina Buga, Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals
- Olya Gayazova, The North Pole Seabed Nature Reserve as a Provisional Arrangement
- Robert A. Makgill & Hamish G. Rennie, A Model for Integrated Coastal Management Legislation: A Principled Analysis of New Zealand's Resource Management Act 1991
Decisions about when to initiate investigations and which cases to prosecute are among the most difficult and contested choices international courts face. This chapter is part of a project aimed at developing general rules and principles of international criminal procedure. Its central aim therefore is to ascertain whether any general rules or principles govern decisions about which situations to investigate and which cases to prosecute. The chapter scans the available sources for principles or rules that either limit the discretion of decision-makers with regard to selection decisions or mandate certain considerations or courses of action. Perhaps unsurprisingly, we identify only a few applicable general principles, concluding instead that such selection decisions are largely a matter of policy. The most important principle that limits discretion in selection decisions is that of equality along with its corollary, the prohibition against invidious discrimination, and the related principle of impartiality. The law and practice also reveal a principle that charges should not be brought without sufficient evidence as well as a developing principle of independence – prosecutors should not take instruction from outside sources with regard to particular cases. After identifying these principles, we briefly suggest some issues that should be more fully considered as the law and practice related to selection decisions develops. In particular, additional attention should be focused on the manner in which selection decisions contribute to accomplishing and prioritizing the various goals and objectives of international criminal law.
- Barbara Goy, Individual Criminal Responsibility before the International Criminal Court
- Matteo Crippa, A Long Path toward Reconciliation and Accountability: A Truth and Reconciliation Commission and a Special Chamber for Burundi?
- Ulf Linderfalk, What Is So Special About Jus Cogens? - On the Difference between the Ordinary and the Peremptory International Law
- Karol Karski, The International Legal Status of the Sovereign Military Hospitaller Order of St. John of Jerusalem of Rhodes and of Malta
- Barbara K. Woodward, The Roles of Non-State Actors in Lawmaking within the Global Intellectual Property Regimes of WIPO and TRIPs
- Hiroshi Maruyama, Ainu Landowners' Struggle for Justice and the Illegitimacy of the Nibutani Dam Project in Hokkaido Japan
- Patrick Dunaud & Maria Kostytska, Declaratory Relief in International Arbitration
- Vesna Lazić, The Commission’s Proposal to Amend the Arbitration Exception in the EC Jurisdiction Regulation: How ‘Much Ado about Nothing’ Can End Up in a ‘Comedy of Errors’ and in Anti-suit Injunctions Brussels-style
- Antoine Martin, Investment Disputes after Argentina’s Economic Crisis: Interpreting BIT Non-precluded Measures and the Doctrine of Necessity under Customary International Law
- Ruslan Mirzayev, International Investment Protection Regime and Criminal Investigations
- John Gaffney, Non-party Autonomy: Displacing the Negative Effect of the Principle of ‘Competence-Competence’ in England?
- Jennifer Kirby, Finality and Arbitral Rules: Saying an Award Is Final Does Not Necessarily Make It So
- Christopher L. Pallas & Johannes Urpelainen, NGO monitoring and the legitimacy of international cooperation: A strategic analysis
- Molly E. Bauer, Cesi Cruz & Benjamin A. T. Graham, Democracies only: When do IMF agreements serve as a seal of approval?
- Roland Vaubel, Bernhard Klingen & David Müller, There is life after the Commission: An empirical analysis of private interest representation by former EU-commissioners, 1981–2009
- Mark S. Copelovitch & David Ohls, Trade, institutions, and the timing of GATT/WTO accession in post-colonial states
Sunday, February 5, 2012
Aggression, Crime and International Security examines the concept of aggression in international relations and how it has been dealt with by international law and collective security organisations.
This book analyses the evolution of the concept of aggression in international relations from World War I to the post-Rome Statute era. It charts the emergence of two competing visions of this notion: on the one hand, as a triggering mechanism for collective security enforcement among states, and, on the other, as an international crime giving rise to individual responsibility. The author argues that despite certain contemporary international trends suggesting a shift away from traditional, state-centric power structures towards a more cosmopolitan, globalized polity, the history of the concept of aggression demonstrates just how far away this is in reality. By examining aggression in theory and practice at the League of Nations, the Nuremberg and Tokyo Trials, the United Nations, the conference establishing the Rome Statute, and beyond, the book reveals the recurring moral, political and legal challenges this concept poses - challenges which continue to be at the forefront of thinking about international relations today.