To anyone setting out to explore the entanglement of international criminal justice with the interests of States, Germany is a particularly curious, exemplary case. Although a liberal democracy since 1949, its political position has altered radically in the last 60 years. Starting from a position of harsh scepticism in the years following the Nuremberg Trials, and opening up to the rationales of international criminal justice only slowly - and then mainly in the context of domestic trials against functionaries of the former East German regime after 1990 - Germany is today one of the most active supporters of the International Criminal Court. The climax of this is its campaigning to make the ICC independent of the UN Security Council - a debate in which Germany took a position in stark contrast to the United States. This book offers new insight into the debates leading up to such policy shifts. Drawing on government documents and interviews with policymakers, it enriches a broader debate on the politics of international criminal justice which has to date often been focused primarily on the United States.
Saturday, June 9, 2012
Steinke: The Politics of International Criminal Justice: German Perspectives from Nuremberg to The Hague
Friday, June 8, 2012
- Ray Murphy, Post-UN Withdrawal: An Assessment of Peacekeeping in Chad
- John Snape, Tulips and Jute: Grotius, Smith and an Enlightenment Ethos in International Taxation Law
- Suzanne Doyle, The New Paradigm for Involuntary Detention: Article 14 of the UN Convention on the Rights of Persons with Disabilities
- Dug Cubie, An Enchanted Tool?: Humanitarian Assistance and the ILC Draft Articles on the Protection of Persons in the Event of Disasters
- Shorter Articles and Notes
- Michelle Farrell, Ireland and the United Nations Declaration against Torture: Principles and Politics in Action
- Patricia O’Brien, Legal Challenges Facing the United Nations: An Appraisal from the Legal Counsel’s Perspective, Sean Lester Lecture of the Irish Society of International Law, 11 March 2010
Like any complex human activity, the practice of international arbitration takes place in a context wider than its rules and its “book learning” can articulate. Its hallmark combination of fairness and efficiency is actually accomplished through a web of deliberation and judgment in which particular circumstances play an ever-present role. This highly distinctive book combines an unparalleled familiarity with the key theoretical and practical books in the field and a keen awareness, from procedural and evidentiary perspectives, of what arbitral tribunals and practitioners actually do – or should do.
Central to the book’s purpose is the procedural challenge facing arbitrators at each and every stage of the arbitral process when fairness arguments conflict with efficiency concerns and trade-offs must be determined. Some key themes include how can a tribunal be fair, and in particular be neutral, if parties are so diverse? How can arbitration be made efficient and cost-effective without undue inroads into fairness and accuracy? How does a tribunal do what is best if the parties are choosing a suboptimal process? When can or must an arbitrator ignore procedural choices made by the parties? The author thoroughly evaluates competing arguments and adds his own practical tips, expertly synthesizing and engaging with the conference literature and differing authors’ views. He identifies criteria that offer a harmonized approach to each stage of the arbitral process, with particular attention to such aspects of international arbitration as: appropriate trade-offs between flexibility and certainty; the rights, duties and powers of arbitrators; appointment and challenge of arbitrators; responses to ‘guerilla’ tactics; drafting of arbitration agreements, including specialty clauses; drafting of required commencement notices and response documents; set-off; fast track arbitration and other efficiency options; strategic use of preliminary conferences and timetabling; online arbitration; multi-party, multi-contract, class arbitration; amicus and third party funders; pre-arbitral referees and interim relief; witness evidence, both factual and expert; documentary evidence, production obligations, and challenges to production; identifying applicable law; and remedies and costs.
The discussion of each stage offers practical suggestions informed by insights from various theoretical debates and empirical studies, and a unique appendix outlines the facts of numerous reported challenges to arbitrators.
Qureshi & Gao: International Economic Organizations and Law. The Perspective and Role of the Legal Counsel
There can be little doubt that a group of prominent and influential organizations lie at the heart of international economic law (IEL). These include the Bretton Woods institutions, regional development banks and economic organizations, and various specialized global institutions primarily active in norm generation. This volume possesses the unique distinction of presenting the perspectives – both institutional and personal – of legal counsels in some key international economic organizations regarding their work and the role of law within the framework of their organizations, with particular attention to the conditions within which they can optimally contribute to the development of IEL. This last consideration is emphasized in three ‘external’ academic perspectives that focus mainly on what the role of counsels in international economic organizations ought to be. Each first-hand perspective focuses on counsel’s involvement in such aspects of IEL as the following: providing internal advice on the law of the organization; assisting members with respect to domestic institutions and law in the economic sphere; to what extent (if any) legal counsels are normally involved in policy making for issues that are not strictly of a legal nature; intellectual contributions both to the development of international law and the dissemination and exchange of legal knowledge among various stakeholders; ethical challenges and response to possible conflicts of interests; generation of soft law economic instruments; legal issues on replenishment of resources for development funding; setting of internationally recognized standards or best practices for commercial and financial legislation; informal networks of lawyers and lawyer functions which cut across institutional and territorial boundaries; and negotiation and management of free trade agreements from a legal perspective. In the opinions proffered, in the preoccupations shared, indeed even in the silence of omissions, these contributions by distinguished key practitioners from major representative organizations that play a role in the international economic system will be warmly welcomed by the community of scholars, policymakers and practitioners concerned with international economic law.
Thursday, June 7, 2012
Acknowledging that governance relies not only on formal rules and institutions but to a significant degree also on informal practices and arrangements, this unique Handbook examines and analyses a wide variety of theoretical, conceptual and normative perspectives on informal governance.
The insights arising from this focus on informal governance are discussed from various disciplinary perspectives, within different policy domains, and in a number of regional and global contexts. This Handbook is an important contribution that will put informal governance firmly on the map of academic scholarship with its review of the range of the different uses and effects of informal arrangements across the globe.
International investment arbitration involves high costs both for the investor and the State appearing in proceedings. A relatively recent phenomenon in international investment arbitration is the financing of the proceedings by a third party funder. The third party funder as such has no interest in the substantive issues of the arbitral proceedings, but instead invests in the proceedings hoping to make a considerable profit upon the settlement of the dispute.
International arbitrators have in principle no competence to address the third party funding agreement because their competence is limited to the dispute between the foreign investor and the host State. The funding agreement is thus alien to the legal relations between the foreign investor and the host State. After an analysis of the rationale, concept and principles of third party funding, this Article will analyse whether tribunals may nevertheless use their discretion to intervene in or take into consideration the relationship between the investor and its third party funder, in particular in view of the allocation of costs in the arbitral proceedings. This Article will also investigate whether the existence of a funding agreement is subjected to any rule on transparency and to an obligation of disclosure, in essence in order to ensure the respect of the principle of ‘equality of arms’.
- Sarah Finnin, Mental Elements Under Article 30 of the Rome Statute of the International Criminal Court: A Comparative Analysis
- Jure Vidmar, Explaining the Legal Effects of Recognition
- Bryan Mercurio, ‘Seizing’ Pharmaceuticals in Transit: Analysing the WTO Dispute That Wasn't
- Jacqueline Peel, Of Apples and Oranges (and Hormones in Beef): Science and the Standard of Review in WTO Disputes Under the SPS Agreement
- Zheng Sophia Tang, Effectiveness of Exclusive Jurisdiction Clauses in the Chinese Courts—A Pragmatic Study
- Shorter Articles
- Cecily Rose, The UK Bribery Act 2010 and Accompanying Guidance: Belated Implementation of the OECD Anti-Bribery Convention
- Lavanya Rajamani, The Durban Platform for Enhanced Action and the Future of the Climate Regime
- Garrett Wallace Brown, The constitutionalization of what?
- David Dyzenhaus, Constitutionalism in an old key: Legality and constituent power
- Andreas Follesdal, Global distributive justice? State boundaries as a normative problem
- Regina Heller, Martin Kahl, & Daniela Pisoiu, The ‘dark’ side of normative argumentation – The case of counterterrorism policy
- Armen Mazmanyan, Failing constitutionalism: From political legalism to defective empowerment
- Vlad Perju, Proportionality and freedom—An essay on method in constitutional law
Giorgetti: Challenges of Arbitrators in International Disputes: Two Tribunals Reject the “Appearance of Bias” Standard
Wednesday, June 6, 2012
de Brabandere: Co-existence, Complementarity or Conflict? Interaction between Preferential Trade and Investment Agreements and Bilateral Investment Treaties
The most remarkable evolution in the field of international investment law is undoubtedly the massive proliferation of Bilateral Investment Treaties (BITs) and Preferential Trade Agreements (PTAs), either in the form of Free Trade Agreements (FTAs) of Custom Unions (CUs). PTAs increasingly, as will be pointed out, contain provisions on the liberalization and/or protection of foreign investment, and may then be referred to as Preferential Trade and Investment Agreements (PTIAs).
PTAs differ substantially in terms of the extent to which they cover investment. Agreements in the area of trade and investment either contain explicit provisions on the protection, and possibly the liberalization of foreign investment, or are aimed essentially at the regulation of trade in services and/or goods, in which case the provisions on investment are usually less extensive than in the former or even completely absent. BITs and modern PTAs which include investment protection (and liberalization) provisions, which may then be categorized as PTIAs, follow the first approach, and thus contain extensive provisions on both the liberalization and the protection of foreign investment (PTIAs), while the majority of the traditional PTAs follow the second approach, containing only a framework or framework provisions committing to further liberalization, protection and promotion of investment.
This contribution aims to analyze the interrelationship between the network of bilateral investment treaties and PTIAs with respect to the protection of foreign investment. In doing so, this contribution will examine the differences in the content and rationale of PTIAs as compared to BITs, and in particular how substantive investment protection and investment dispute settlement are dealt with in PTIAs and BITs. Finally, this contribution will address whether conflicts between PTIAs and BITs are possible, and if so, how these conflicts may be addressed.
- Luc Reydams, Jan Wouters, & Cedric Ryngaert, Introduction
- Luc Reydams & Jan Wouters, The Politics of Establishing International Criminal Tribunals
- Luc Reydams & Jed Odermatt, Mandates
- Marieke Wierda & Anthony Triolo, Resources
- Gregory Townsend, Structure and Management
- Luc Coté, Independence and Impartiality
- Frédéric Mégret, Accountability and Ethics
- Kai Ambos & Stefanie Bock, Procedural Regimes
- Frederiek de Vlaming, Defendant Selection
- Hiroto Fujiwara & Stephan Parmentier, Investigations
- Jeffrey Locke, Indictments
- Cedric Ryngaert, Arrest and Detention
- Sergey Vasiliev, Trial
- David Re, Appeal
- Kevin Jon Heller, Completion
- Luc Reydams, Jan Wouters, & Cedric Ryngaert, Conclusions
The Oxford Handbook on the World Trade Organization provides an authoritative and cutting-edge account of the World Trade Organization. Its purpose is to provide a holistic understanding of what the WTO does, how it goes about fulfilling its tasks, its achievements and problems, and how it might contend with some critical challenges. The Handbook benefits from an interdisciplinary approach. The editorial team comprises a transatlantic partnership between a political scientist, a historian, and an economist. The distinguished and international team of contributors to the volume includes leading political scientists, historians, economists, lawyers, and practitioners working in the area of multilateral trade. All the chapters present original and state-of-the-art research material. They critically engage with existing academic and policy debates, and also contribute to the evolution of the field by setting the agenda for current and future WTO studies. The Handbook is aimed at research institutions, university academics, post-graduate students, and final-year undergraduates working in the areas of international organization, trade policy and negotiations, global economic governance, and economic diplomacy. As such, it should find an enthusiastic readership amongst students and scholars in History, Economics, Political Science, International Relations, Public Policy, and Law. Equally important, the book should have direct relevance for diplomats, international bureaucrats, government officials, and other policy-makers and practitioners in the area of trade and economic governance.
From May 1998 to December 2000, Eritrea and Ethiopia engaged in an armed conflict that cost the lives of thousands of individuals, injured thousands more, and displaced tens of thousands of men, women, and children from their homes. In December 2000, the two sides concluded a comprehensive agreement that ended the war. Among other things, the agreement established the Eritrea-Ethiopia Claims Commission. Consisting of five arbitrators, the Commission’s mandate was to “decide through binding arbitration all claims for loss, damage or injury by one Government against the other” that were “related to the conflict” and that “resulted from violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.” The two countries filed claims with the Commission in December 2001 and from that time until August 2009, the Commission issued seventeen arbitral awards and eight decisions, covering a broad array of claims, including inhumane treatment of prisoners of war and civilian internees, abuse of enemy aliens in a belligerent’s territory or in occupied territory, wrongful seizure of the enemy’s public or private property, indiscriminate battlefield conduct or aerial bombing, harassment of diplomats and seizure of diplomatic property, and many other matters.
The forthcoming book Litigating War: Arbitration of Civil Injury by the Eritrea-Ethiopia Claims Commission seeks to integrate in discrete chapters the Commission’s findings on key topics, with each chapter organized into sub-sections that deal with the principal elements of that topic. The guiding emphasis is not on who-filed-what claim but is instead on what kinds of violations were addressed by the Commission, what kinds of evidence were relevant in establishing or defending against such violations, what legal conclusions emerged in addressing those violations, and what levels of compensation were deemed appropriate when a violation was found.
The dominant area of international law upon which claims before the Eritrea-Ethiopia Claims Commission were based was the jus in bello, or the law operating as between two belligerents after an armed conflict has arisen. One type of claim filed before the Commission, however, was quite different, in that it concerned an alleged violation of the jus ad bellum, or the law on when a state may resort to a use of military force against another state. As one of the most important norms for the international legal system, the Commission’s treatment of the jus ad bellum claim is of particular interest, and is addressed in the book’s Chapter IV on “Initiation of War.”
Tuesday, June 5, 2012
Dunoff & Pollack: International Law and International Relations: Introducing an Interdisciplinary Dialogue
Despite common interests, the disciplines of international law and international relations were estranged during much of the 20th Century. However, the past two decades have witnessed a wealth of inter-disciplinary scholarship, in which legal scholars have drawn on international relations theories and on qualitative and quantitative methods from political science, and political scientists have attempted to understand the causes and consequences of the legalization of international relations. Yet the interdisciplinary nature of this scholarship, and its fragmentation by issue-areas such as trade, human rights, criminal and humanitarian law, have meant that few scholars have paused to take stock of what we have learned, aggregate empirical findings across disciplines and issue-areas, draw lessons, and chart an agenda for future research.
Interdisciplinary Perspectives on International Law and International Relations: The State of the Art seeks to fill this scholarly void. This paper serves as both a stand-alone account of the interdisciplinary dialogue in this area and as an introduction to the authors’ edited volume. The paper provides a brief overview of IL/IR’s emergence as an interdisciplinary field of study, and critically explores the “terms of trade” between the two disciplines found in seminal IL/IR scholarship. We argue that those terms have been largely unidirectional with political science/IR providing much of the theoretical content and (to a lesser extent) epistemological and methodological guidance of IL/IR scholarship, and with IL as a discipline contributing primarily a deep knowledge of legal doctrine, institutional design and processes, and dispute settlement mechanisms.
Like virtually all efforts to bridge distinct disciplinary traditions, IL/IR writings have sparked a sustained backlash, particularly among some international lawyers. We examine three sources of these disciplinary tensions: different substantive theories and ideas about the nature and role of theory, different epistemologies, and different conceptions of law associated with the two disciplines. Consideration of the issues that underlie disciplinary tensions sheds light on the promise and the limits of interdisciplinary work, and identifies key issues to be addressed in future research.
The final part of this introduction provides a brief overview of the volume’s organization and contents. Interdisciplinary Perspectives on International Law and International Relations: The State of the Art contains sections on: (i) theorizing international law; (ii) the making or designing of international law; (iii) interpretation and adjudication; and (iv) compliance and enforcement.
This article retraces the debate on the assimilation of submarine warfare with piracy that arose with the Washington Treaty of 1922 and culminated with the Nyon Agreement of 1937. It argues that the rejection of the superior orders defence at Nyon, together with the enforcement of anti-piracy international police measures, represented the first concrete breach of the international legal taboo that the public enemy cannot be criminalized. It also argues that the presence of an ‘enemy of mankind’, as denied by Carl Schmitt and asserted by Hersch Lauterpacht, played a significant role in this process by motivating international co-operation and justifying collective recourse to force. With reference to the current debate on terrorism, the article problematizes recent attempts to establish an analogy between historical pirates and contemporary terrorists.
Les droits de la pesonne sont garantis au niveau international par le droit international des droits de l’homme, le droit humanitaire et le droit des réfugiés. La multiplication des normes, le morcellement de leurs sources, leur consécration au sein de diverses organisations et la pluralité des interprètes auxquels est confié le contrôle de leur respect laisse craindre un fractionnement de la matière. En parallèle, cette situation autorise et favorise des interactions entre les différentes normes du droit international de la personne, que ce soit lors de leur apparition sur la scène internationale ou lors de leur interprétation, notamment dans le cadre d’un dialogue des juges. L’étude des vecteurs et des effets de ces interactions doit s’accompagner d’une réflexion sur la possible émergence d'un droit commun par leur biais ainsi que sur la crédibilité et la sécurité juridique qui les accompagnent.
This article considers the entitlement of a foreign state to assert its jurisdictional immunity in respect of proceedings before the forum state's court in which an individual official of the foreign state is the named defendant and is outwith the limited class of high ranking officials benefiting from a personal immunity. In Jones v Saudi Arabia the House of Lords concluded that the legal test for establishing the requisite connection between the impugned acts of the foreign state official and the foreign state as a corporate entity should be supplied by the rules of attribution in the law of state responsibility. Other national courts have relied upon the mere fact of the foreign official's employment in the government of the foreign state. The thesis advanced in this article is that such approaches are wrong in customary international law: the foreign state is entitled to assert its jurisdictional immunity in respect of proceedings relating to acts of the foreign state official performed in the service of the foreign state but acts proscribed by international norms directed to the conduct of individuals cannot be characterised as acts in the service of the foreign state.
Monday, June 4, 2012
- Special Issue: Improving the Effectiveness of Multilateral Trade Negotiations
- Cecilia Albin, Improving the Effectiveness of Multilateral Trade Negotiations: A Synopsis
- Larry Crump & Daniel Druckman, Turning Points in Multilateral Trade Negotiations on Intellectual Property
- Cecilia Albin & Ariel Young, Setting the Table for Success – or Failure? Agenda Management in the WTO
- Anders Ahnlid, A Practitioner’s Perspective on the 2008 WTO Ministerial Meeting
- Gunnar Sjöstedt, NGOs in WTO Talks: Patterns of Performance and What They Mean
- Jannie Lilja, Domestic-Level Factors and Negotiation (In)Flexibility in the WTO
- Maria F. Agius, Strategies and Success in Litigation and Negotiation in the WTO
- Lena Lindberg & Claes G. Alvstam, The Ambiguous Role of the WTO in Times of Stalled Multilateral Negotiations and Proliferating FTAs in East Asia
- Erik Andersson, Who Needs Effective Doha Negotiations, and Why?
The purpose of this conference is to convene leading experts from around the world to consider the state of existing and further need for international regulation of continental shelf activities, focusing in particular on the exploration and exploitation of hydrocarbons.
In 2010 the Deep Water Horizon casualty in deep waters of the Gulf of Mexico triggered widespread concern over the regulatory and management regime with far reaching implications for safety, environmental and economic impacts. In addition to concerns raised by drilling in deep waters, there are also other concerns over new uses of the seabed and subsoil within national jurisdiction and the applicable standards to be addressed at the conference.
It is likely that the probability of casualties associated with industrial uses of the world’s oceans cannot be eliminated. Perhaps by implication, any activity in a hazardous environment, especially deep ocean areas, carries an inherent risk which calls for its anticipation, management and response.
In 2012 the United Nations Convention on the Law of the Sea (LOS Convention) will experience the 30th anniversary since it was adopted in Montego Bay, Jamaica, on 10 December 1982. Thirty years since adoption, and in light of recent events, it is appropriate to return to the regime of the continental shelf and consider its capacity to address uses that pose special risks and hazards to marine safety and the environment.
At the Third United Nations Conference on the Law of the Sea (UNCLOS III) the regulation of activities on the continental shelf per se received insufficient attention. For the most part, the resulting LOS Convention focused on the consolidation and allocation of sovereign rights and jurisdictions of the coastal state, the protection of limited international uses of the continental shelf (e.g., submarine cables and pipelines) and two specific provisions on pollution from seabed activities within national jurisdiction. Other provisions concerning the protection and preservation of the marine environment applied to uses of the continental shelf.
To date, there is no global intergovernmental organization dedicated to standard-setting and rule-making for offshore oil and gas development. The most proximate organization is the International Seabed Authority, but whose competence is restricted to activities related to the international seabed area. The lack of international conventional law governing the operational aspects of continental shelf activity may be characterised as unfinished business of UNCLOS III.
Courts and scholars continue to debate the status of customary inter-national law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these powers on judicial precedent applying the law of nations throughout U.S. history. Several specific powers — such as the powers to send and receive ambassadors, declare war, issue letters of marque and reprisal, and make rules governing captures — can only be understood by reference to background principles of the law of nations. At the time of the Founding, it was reasonably assumed that U.S. courts would recognize the traditional rights of foreign sovereigns under the law of nations as a means of respecting the Constitution’s allocation of specific foreign relations powers to the political branches. Considered in this light, the Supreme Court’s decisions applying traditional principles derived from the law of nations throughout U.S. history have largely — if not exclusively — served to implement this allocation of powers. From this perspective, both the modern and the revisionist positions rest partly on erroneous premises. The modern position errs in claiming that the best way to read Supreme Court precedent applying the law of nations is that federal courts have independent Article III power to adopt such law as federal common law. Consistent with the original public meaning of the Constitution, this precedent is better read to apply certain traditional principles of the law of nations when necessary to uphold the political branches’ recognition, war, reprisal, and capture powers under Articles I and II. The revisionist position overlooks the role of these powers by requiring the political branches or states to adopt traditional principles of the law of nations before courts may apply them. Historical understandings and judicial practice suggest that courts must apply traditional principles of the law of nations not only when the federal political branches or the states have adopted them, but also when Articles I and II require courts to do so. In such instances, the law of nations functions as constitutional law.
This article discusses the way in which the ILC Articles on the Responsibility of International Organizations (ARIO) have addressed the responsibility of international organizations for conduct of member States implementing their normative acts. The ILC has chosen to deal with this issue through the concept of responsibility 'in connection with’ acts of States, which it had already included in its Articles on State Responsibility (ASR). Focusing primarily on article 17 ('circumvention'), we argue that the attempt to address this particular type of responsibility has forced the ILC to relax the conceptual straightjackets it had opted for in the ASR, and has exposed ambiguities in the foundations of the law of international responsibility.
Since the demise of philosophical foundationalism and that of the Aristotelian idea of an inner meaning of words, the scholarship about international law is no longer perceived as a mining activity geared towards the extraction of pre-existing meaning. Rather, international legal scholarship is in a state of fierce competition for persuasiveness and semantic authority. This does not elevate persuasiveness into the determinant of legality, nor does it lead to a total rejection of the internal point of view. The configuration of that competition for naming is informed by the current structure of (and the membership to) the interpretative community of international law. In this competition for naming, words constitute semantic weaponry. Mention is made here of uses of words in international law to create textual economy, generate semantic instability, rough out and hone scholarly ideas, enhance textual aesthetics, yield empiricism, create strawmen and preserve the argumentative character of scholarly idea, gratify oneself, boost fame and careers, and intimidate peers. It is also argued that there is nothing to rein in the use of such semantic tactics in the interpretative community of international law, for paradigmatic revolution is meant to be permanent. It is only if international legal scholars were to lose their social identity that the competition for naming and the interpretative community of international law would vanish altogether.
Sunday, June 3, 2012
Nollkaemper: International Adjudication of Global Public Goods: The Intersection of Substance and Procedure
International adjudication is a small, but not irrelevant, component in the complex international governance structure through which states and other actors seek to deliver global public goods. This article explores the plurality of connections between the procedural law of international adjudication and the substantive law that protects public goods. The article articulates choices that courts face, and discusses whether shaping these connections is a proper part of the international judicial function, taking into account problems of legitimacy that may arise when judge-made procedure will undo state-made substantive law.