- Yuval Shany, Assessing the Effectiveness of International Courts: A Goal-Based Approach
- David J. Bederman, Jurisprudence of the Foreign Claims Settlement Commission: Albania Claims
- In Memoriam
- Bernard H. Oxman, David J. Bederman (1961–2011)
- Notes and Comments
- Catherine Powell, Libya: A Multilateral Constitutional Moment?
- Paul S. Reichler, The Nicaragua Case: A Response to Judge Schwebel
- Current Developments
- Donald McRae, The Work of the International Law Commission, 2007–2011: Progress and Prospects
Saturday, May 26, 2012
Friday, May 25, 2012
- Yolanda Gamarra, Rafael Altamira y Crevea (1866-1951). The International Judge as 'Gentle Civilizer'
- Peter Langford & Ian Bryan, Hans Kelsen's Theory of Legal Monism. A Critical Engagement with the Emerging Legal Order of the 1920s
- Robert Nelson & Christopher Waters, The Allied Bombing of German Cities during the Second World War from a Canadian Perspective
- Daniel Schwartz, Grotius on the Moral Standing of the Society of Nations
- Jan Klabbers, Controlling International Organizations: A Virtue ethics Approach
- Odette Murray, Piercing the Corporate Veil: The Responsibility of Member states of an International Organization
- Brigitte Benoit Landale & Huw Llewellyn, The International Residual Mechanism for Criminal tribunals: The Beginning of the end for the ICTY and ICTR
- Edouard Fromageau, The Global Water Partnership: Between Institutional Flexibility and Legal Legitimacy
- Christiane Ahlborn, The Rules of International Organizations and the Law of International Responsibility
- Vinesh Basdeo, The Constitutional Challenges of Warrantless Search and Seizure in South African Criminal Procedure: A Comparative Analysis
- Olu Fasan, Commitment and Compliance in International Law: A Study of the Implementation of the WTO TRIPS Agreement in Nigeria and South Africa
- Luwam Dirar, Folklore Protection in the Eritrean Context: Legal Issues and Choices
- Laurence Juma, Normative and Institutional Approaches to the Protection of Property Rights of IDPs in Kenya's Rift Valley Province
- Jamil Ddamulira Mujuzi, Towards the Establishment of a Prisoners Transfer Legal Regime in South Africa: Failed Attempts, Available Options and Critical Issues to Consider
- Osahon O. Guobadia, The Relevance of the Judiciary in a Democratic Nigeria
- Solomon E. Salako, Agrobiotechnology, Indigenous Peoples' Rights and Traditional Knowledge
Thursday, May 24, 2012
The dominant conceptions of development and the right thereto have been confined to narrow, sectoral interpretations focusing on economic matrices and collective entities such as the state or peoples. This book delimits these key notions of the public order of the 21st century in an entirely new fashion. Drawing on fundamental precepts of policy-oriented jurisprudence, this book offers a comprehensive and systematic study and redefinition of development and the right to development guided by the goal of maximum access by all to the processes of shaping and sharing of all things humans value, including, empirically, aspirations to power, wealth, well-being, affection, enlightenment, skills, respect, and rectitude. This new paradigm of development offers fertile ground for legal and policy responses designed to bring about a public order of human dignity in all parts of the planet.
- Brian Tamanaha, What is 'General' Jurisprudence? A Critique of Universalistic Claims by Philosophical Concepts of Law
- Leon E. Trakman, A Plural Account of the Transnational Law Merchant
- Horatia Muir Watt, Private International Law Beyond the Schism
Genocide is widely acknowledged as ‘the crime of crimes’. Such universal condemnation understandably triggers both loose talk (calling each and every massacre ‘genocide’) and utter reluctance in political circles to use the ‘G-word’. The social construction of genocide reflects the deeper question whether the rigid legal concept of genocide – as it emerges in the Genocide Convention and has been maintained ever since – still corresponds with the historical and social perception of the phenomenon. This book is the product of an intellectual encounter between scholars of historical and legal disciplines which have joined forces to address this question. The authors are strongly inspired by the idea that the multi-disciplinary research of and education on genocide may contribute to a more appropriate reaction and prevention of genocide.
When the U.N. Security Council voted to authorize the use of military force in Libya in March 2011, observers greeted the decision as a triumph for the responsibility to protect, the notion that states have a responsibility to protect their own people, and that the international community has a responsibility to step in when the state fails its responsibility. After years of debate and controversy, the initiation of military action in Libya was seen as an indication that the international community in general, and the United States in particular, finally had embraced the responsibility to protect and was willing to put words into action. This Essay critically examines the role the responsibility to protect played in the U.S. government’s public justifications for supporting intervention in Libya. It argues that although a sense of responsibility factored into the Obama Administration’s explanations for supporting intervention, that responsibility played only a secondary role, subordinated to U.S. interests in protecting regional stability, deterring violent repression by other dictators, and shoring up the credibility of the United Nations. Because the responsibility to protect constituted only one part of the government’s stated motivation for intervention, identifying the intervention as being driven by the responsibility to protect risks undermining the core of the responsibility to protect, mutating the principle into a new form that envisions a responsibility that is triggered only when other state interests motivate intervention. This deference to state interests, however, was exactly what the responsibility to protect principle sought to overcome. Moreover, identifying an intervention motivated by interests as an exercise of the responsibility to protect risks equating the principle of responsibility with mere interest, thus confirming the fears of many states that the responsibility to protect provides political cover for powerful states’ military adventurism and imperialism. Should proponents of the principle wish to further their goal of convincing otherwise uninterested states to take notice of foreign atrocities, and if they wish to avoid legitimating interventions based on narrow national interests, they should be careful not to conflate what motivated the Libya intervention with the responsibility to protect. The decision to intervene thus marked an advancement of the principle of responsibility to protect in U.S. foreign policy, but it should not be characterized as a successful manifestation of the responsibility to protect.
There are growing indications that transjudicial dialogue among national courts has increased in recent years and that it has become more routinized. We argue below that this trend is at least partially motivated by the efforts of these courts to: address a 'judicial deficit' that has resulted from the broad transfer of regulatory policy-making authority from the domestic to the international sphere; and curb pro-executive interpretations of regulatory rules on the part of less politically insulated international tribunals. While recognizing the dangers of 'le gouvernement des juges', we suggest that, at least in the short term, the expanded role of national courts can operate to enhance rather than pre-empt domestic political processes and promote accountability to diverse democratic concerns by providing opportunities for national legislatures and civil society to weigh in on matters subject to executive discretion or international regulation.
Wednesday, May 23, 2012
Unlike many areas of international cooperation, international financial regulation (IFR) relies on informal networks of regulators and “soft law” standards. The conventional wisdom is that this system provides effective cooperation while preserving the benefits of speed, flexibility and expertise in regulating global financial markets. In light of the crisis, however, skepticism has grown, with some commentators calling for a formal international organization to regulate finance. An elementary difficulty in this debate is the lack of a convincing account of the objectives of IFR. Why is unilateral regulation by states suboptimal, what are the potential gains from cooperation, and are those gains in fact achieved?
This article identifies five such objectives. The current system has been largely successful at two of them: facilitating basic cross-border supervision and enforcement assistance among regulators, and removing barriers to international finance by harmonizing some national rules. In three important areas, however, IFR has performed poorly. First, it has encountered numerous setbacks in its attempts to raise regulatory standards in states where powerful domestic constituencies resist reforms. Second, it has struggled to secure durable collective action among major jurisdictions to raise prudential standards, like capital adequacy rules. Finally, it has failed to create credible mechanisms to address situations where unilateral action is counterproductive, like cross-border bank resolution.
Given such limited success, why do soft law and networks dominate IFR? This article argues that the current system is not a product of efficient design but of historical path dependence and political economy. The postwar monetary system contemplated strict limitations on capital mobility and no need for regulation of international finance. After it collapsed, national regulators had to face financial globalization with the limited tools at their disposal. In turn, the growth of informal IFR empowered political actors — the regulators themselves, financial firms, and great powers — whose interests now largely determine outcomes across areas of IFR. Despite some post-crisis reforms, this pattern persists and raises doubt that IFR can effectively address the challenges of systemic risk and moral hazard.
Eight member countries of the South Asian Association for Regional Cooperation (SAARC) have recently concluded the Agreement on South Asian Free Trade Area (SAFTA) and SAARC Agreement on Trade in Services (SATIS). To date, the progress of sub-regional trade integration in South Asia appears to be rather lacklustre. This book critically analyses the international legal aspects of economic integration in South Asia. It argues that although there are economic constraints in bringing about greater economic integration in South Asia, those constraints are not insurmountable. Many of the constraints are merely outcomes of dubious policies pursued by the policy makers in the sub-region and can be tackled with sustained political commitment towards the cause of the South Asian economic integration.
- Research Articles
- Branko Milanovic, Global Inequality: From Class to Location, from Proletarians to Migrants
- Khusrav Gaibulloev, Todd Sandler & Charlinda Santifort, Assessing the Evolving Threat of Terrorism
- Attila Ágh, Global Governance and Integrative Balancing: EU Efforts to Respond to the Global Challenge
- Stefan Collignon, Rebalancing the Global Economy
- Thomas Hale & David Held, Gridlock and Innovation in Global Governance: The Partial Transnational Solution
- Special Section - Policy Agendas for the Future of Global Energy
- Andreas Goldthau, Introduction - Policy Agendas for the Future of Global Energy
- Fatih Birol, Energy for all: The Next Challenge
- Shonali Pachauri, Diana Ürge-Vorsatz & Michael LaBelle, Synergies between Energy Efficiency and Energy Access Policies and Strategies
- Andreas Goldthau, From the State to the Market and Back: Policy Implications of Changing Energy Paradigms
- Survey Articles
- Joonkyu Park & Han van der Hoorn, Financial Crisis, SWF Investing, and Implications for Financial Stability
- Xavier Basurto & Mateja Nenadovic, A Systematic Approach to Studying Fisheries Governance
- E. Richard Gold & Jean-Frédéric Morin, Promising Trends in Access to Medicines
- Practitioner Commentaries
- Andreas Klasen, Generating Economic Growth – How Governments can Help Successfully
- Michael DaCosta, IMF Governance Reform and the Board’s Effectiveness
- John O. Kakonge, Challenges of Achieving Millennium Development Goals in Africa by 2015: Some Reflections
- Michael Chibba, Behavioural Economics and International Development
- Review Essay
- Jeffrey Haynes, Religion, Politics and International Relations: Change and Continuity
Ben-Ari: The Normative Position of International Non-Governmental Organizations under International Law
The activities of International Non-Governmental Organizations give rise to multifaceted questions of legality and legitimacy. The normative position of INGOs within the 'international community' has proved to be acutely controversial, demanding a fundamental reconsideration of the concepts of the nation-state and of international organizations of all kinds. There is manifestly a crying need for a comprehensive framework against which the capacity of international law to comprehend these complex issues can be measured. This book explores contemporary approaches towards INGOs, those based on criticism of the doctrine of international legal personality as well as those adopting a functional-constitutional perspective. It engages in a stimulating and thorough interdisciplinary evaluation of the theoretical and practical potential of these theories to generate solutions for the problems produced by the exercise of unregulated authority outside the state-system. The book investigates the main concepts put forward by international lawyers within 'postmodern' discourse, among them 'global civil society', 'globalization' and 'governance', and examines their consistency with existing institutional arrangements, and the century-old attempts to standardize the status of INGOs.
Tuesday, May 22, 2012
In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. This document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone. Numerous academic articles, judicial opinions, and litigation briefs have invoked the Bradford opinion, for a variety of propositions, and the opinion was discussed by both sides in the oral argument before the Supreme Court in the first hearing in the pending ATS case, Kiobel v. Royal Dutch Petroleum. Surprisingly, however, no one appears to have looked for the official records and correspondence concerning the Sierra Leone incident, other than the Bradford opinion itself. Based on research conducted in the archives of both the U.S. State Department and the British Foreign Office, this essay considers the broader diplomatic context of the Bradford opinion. The essay concludes that, when read in light of the complaints from the British government that Bradford was responding to, his opinion provides support for the extraterritorial application of the ATS, but only with respect to the conduct of U.S. citizens. It also concludes that the opinion does not provide support for aiding and abetting liability under the ATS, at least as that concept is typically invoked today. The two principal documents that Bradford was responding to in his opinion, which have not previously been considered in the scholarship on the ATS, are transcribed as an appendix to the essay.
Call for Papers: Standard of Review in International Courts and Tribunals: Rethinking the Fragmentation and Constitutionalization of International Law
Call for papers
Standard of Review in International Courts and Tribunals
Rethinking the Fragmentation and Constitutionalization of International Law
26-27 October 2012
COST Action IS1003, International Law Between Constitutionalization and Fragmentation
University of Seville
Faculty of Law
The fragmentation of international law is conventionally studied in terms of compartmentalization of different sets of norms created within specialized legal regimes. However, this phenomenon may be also approached from a different perspective, which concentrates not so much on substantive rules but on methodologies used by specific international courts, tribunals or other supervisory organs. One of the recurrent questions these bodies are confronted with regards the assessment of measures taken at the national level. These measures often involve highly political or scientific questions that are not always easily translated into the language of international law. By developing detailed testing methods for assessment of states’ conduct, supervisory organs can weaken (if their methods converge) or strengthen (if they diverge) the fragmentation effects.
The crucial role in this context is played by the applicable standard of review. In practice, such a standard is rarely determined by the relevant legal provisions (e.g. a treaty constituting a particular court), and it remains a task of a specific court or tribunal to develop an appropriate methodology. The concept as such is understood as ‘the nature and intensity of review by a [international] court or tribunal of decisions [or other actions] taken by [national] governmental authority’ (Bohanes & Lockhart 2009). The applicable standard of review may concern either factual determinations (e.g. deciding whether a national measure is supported by sufficient scientific evidence) or political and legal determinations made at the national level (e.g. whether a measure is necessary to attain specific objective). Consequently, standard of review determines the extent of discretionary powers enjoyed by national authorities in making certain determinations. In theory, standard of review may range from restrictive (or de novo) review to full deference with many intermediate variations. In some international legal contexts, it may be also referred to as margin of appreciation that is defined ‘as the breadth of deference that the court is willing to grant to the decisions of national legislative, executive, and judicial decisionmakers’ (Burke-White & von Staden 2010).
The deference that is shown by some international tribunals is justified on different grounds. In general, it flows from the idea that national governments are better placed and have greater expertise (epistemic superiority) to make policy and factual determinations as compared to international tribunals. As far as the legal determinations are concerned, this approach also reflects the recognition that normative requirements in international treaty can be met by a range of measures that are still within the legal parameters of international obligations (normative flexibility).
This workshop intends to analyze different approaches taken by international courts and tribunals when confronted with factual, political and legal determinations made at the national level. The workshop will concentrate on two interrelated aspects: (i) standard of review applied by international courts to municipal measures (actions) that are based on prior complex factual determinations and (ii) standard of review applied by international courts to political decisions that involve trade-offs between different competing values (and corresponding legal determinations).
The specific questions that we would like to address include:
To what extent different international tribunals operating in different functional regimes apply the same/similar standard of review when confronted with complex factual issues, political choices and normative flexibilities? If there are differences, what may explain them? Is specific institutional setting relevant? Political context? Values that are protected by particular functional system? Or maybe subject matter of a dispute? If there are similarities, can we identify some meta-norms of constitutional character? What can explain existing (if any) convergences? What are the consequences of differences (if any) in applicable standards of review used by various international tribunals? Do they contribute to fragmentation of international law? Is there uniformity or divergence between standards of review applied by international courts to factual and legal determinations? What is the connection between applicable standard of review and legitimacy of decisions rendered by international courts and tribunals?
A non-exhaustive list of international tribunals or other supervisory organs that are of our interest includes: WTO panels and the Appellate Body, the European Court of Human Rights, the International Court of Justice, the Tribunal for the Law of the Sea, NAFTA panels, arbitration tribunals and ad hoc panels under investment treaties, the Court of Justice of the European Union, the EFTA Court and the Inter-American Court of Human Rights. Authors of selected papers will be invited to publish their works in an edited volume with a renowned international publisher. Invitations to contribute to the edited volume will depend on the quality of the work presented at the conference.
The workshop is organized by Prof. Dr. Daniel García San José and it will be held at the Faculty of Law of the University of Seville.
Applicants should send in a 250-500 words abstract no later than 15 June 2012 to:
Dr. Lukasz Gruszczynski, firstname.lastname@example.org
Prof. dr. Wouter Werner, email@example.com
Participants from countries participating in COST Action 1003 can apply for funding for this workshop. As a rule, COST reimburses a flat rate of €120,- per night for accommodation and travel costs for two participants per participating country. For more information on COST Action 1003, please check the website: http://www.il-cf.eu. If you would like to receive COST funding, please attach a short request (max 150 words) to your paper proposal.
Gordillo: Interlocking Constitutions: Towards an Interordinal Theory of National, European and UN Law
The existence of interactions between different but overlapping legal systems has always presented challenges to black letter law. This is particularly true of the relationship between international law and domestic law and the relationship between federal law and the laws of individual federation members. Moreover some organisations have created their own supranational constitutional systems: the United Nations Charter is the best known, and is often referred to as the 'World Constitution', but the European Court of Justice in Luxembourg views the European Treaties as a 'Constitutional Charter' for Europe, while the European Court of Human Rights has defined the European Convention on Human Rights as a constitutional instrument of 'European public order'.
It is in the dynamic relationship between domestic constitutional laws, EU law, the ECHR and the UN Charter that the most persistent difficulties arise. In this context 'interordinal instability' not only provokes strong academic interest, but also affects what has been called 'governance' or 'global government' and undermines both legal certainty and individual fundamental rights. Different solutions - constitutionalist and pluralist - have been explored, but none of them has received global acceptance. In this book Luis Gordillo analyses the interordinal instabilities which arise at the European level, focusing on three main strands of case law and their implications: Solange, Bosphorus and Kadi. To solve the difficulties caused by this instability Gordillo proposes a form of soft constitutionalism, which he calls 'interordinal constitutionalism', as a means to bring order and stability to global legal governance.
- Alexandra R. Harrington, Don’t Mind the Gap: The Rise of Individual Complaint Mechanisms Within International Human Rights Treaties
- Roberto Laver, The World Bank and Judicial Reform: Overcoming “Blind Spots” in the Approach to Judicial Independence
Civil Society Organizations deploy human rights law every day. It is a weapon of choice for holding governments and others to account for human rights violations. Of course there will be appeals to the values that underpin human rights, such as respect for human dignity and demands for democracy and transparency, but the contemporary normative framework is heavily reliant on human rights law. This law is used in advocacy, campaigning, fact-finding reports, complaints to international bodies, briefs to courts, and to develop the scope and efficacy of the international human rights institutional framework. There are also signs that civil society is starting to use this law to govern its own behaviour.
Monday, May 21, 2012
As globalization continues to spread and evolve, so nation-states attempt to govern financialization, tax evasion, corruption, terrorism, civil and military conflicts and environmental dangers, social polarization and the complexities in human rights implementation, by institutional and transnational means. This volume discusses these issues from different legal perspectives and highlights the challenges of governing human activity in an age of remarkable interconnectedness.
Covering a broad range of policy areas and analysis of emerging forms of governance from liberal to critical and Marxist, the chapters are legal in their approach and form an important contribution to the growing study of emergent forms of authority, coordination and power developing in response to the challenges presented by some of the key contemporary governance issues in the first half of the twenty-first century.
- Cecilia Albin & Daniel Druckman, Equality Matters: Negotiating an End to Civil Wars
- Prakash Adhikari, Wendy L. Hansen, & Kathy L. Powers, The Demand for Reparations: Grievance, Risk, and the Pursuit of Justice in Civil War Settlement
- Joshua R. Gubler & Joel Sawat Selway, Horizontal Inequality, Crosscutting Cleavages, and Civil War
- James Meernik, Rosa Aloisi, Marsha Sowell, & Angela Nichols, The Impact of Human Rights Organizations on Naming and Shaming Campaigns
- Leslie Johns, Courts as Coordinators: Endogenous Enforcement and Jurisdiction in International Adjudication
- Christina J. Schneider & Johannes Urpelainen, Accession Rules for International Institutions: A Legitimacy-Efficacy Trade-off?
- J. Atsu Amegashie & Marco Runkel, The Paradox of Revenge in Conflicts
- Richard C. Eichenberg & Richard J. Stoll, Gender Difference or Parallel Publics? The Dynamics of Defense Spending Opinions in the United States, 1965–2007
This book illustrates how the constitutional feature of the WTO – allowing separate customs territories to become a Member – brings about the coexistence of China, Taiwan, Hong Kong and Macau (the Greater China) in the WTO. It examines the economic integration and the dispute settlement systems within Greater China. It explores their interactions within the multilateral WTO framework, their practices under the new genre of FTA, and their policies in adopting trade defence measures against each other. This book offers a good case study on the impact of WTO membership upon domestic reform and how it contributes to regional integration. It also provides a comprehensive analysis on the existing provisions in the WTO agreements pertaining to judicial review.
Lyall: International Communications: The International Telecommunication Union and the Universal Postal Union
The International Telecommunication Union (ITU) and the Universal Postal Union (UPU) are the two major international organisations that are involved in the regulation of international communications. The ITU deals with electronic communications including radio. The UPU deals with mail. As such, both organisations are of major importance in modern life. This volume provides an up-to-date analysis of their development from inception to the present as they have responded to technical and political change. It also makes suggestions for the future.
The scope of powers of international institutions has always been surrounded by a sense of ambiguity. This has its source in the nature of the two main legal tools with which to construct powers; the doctrines of attributed/conferred powers and implied powers. This book illustrates the function of the two doctrines in a discourse on powers. Special attention is also paid to the move to a constitutional vocabulary as a way of transcending the dichotomy at the heart of diverging constructions of powers. Constitutionalization claims, the book argues, can be reproductions of different images of the proper extent of powers. The book is a reminder of the political nature of any construction of powers of international institutions.
Sunday, May 20, 2012
International law has lacked a widely-accepted definition of armed conflict despite the essential human rights and other rules that depend on such a definition. During armed conflict, government forces have “combatant immunity” to kill without warning. They may detain enemy forces until the end of the conflict without the requirement to provide a speedy and fair trial. Governments may have asylum obligations or neutrality obligations based on the existence of armed conflict. To fill this gap in our knowledge of the law, the International Law Association's Committee on the Use of Force produced a report on the meaning of armed conflict. This book contains the report and papers delivered at an inter-disciplinary conference designed to inform the committee from a variety of perspectives.