Ever more constitutions incorporate the right to health, courts continue to expand their right to health jurisprudence, and communities and civil society increasingly turn to the right to health in their advocacy. Yet the right remains far from being realized. Even with steady progress on numerous fronts of global health, vast inequities at the global and national levels persist, and are responsible for millions of deaths annually. We propose a four-part approach to accelerating progress towards fulfilling the right to health: 1) national legal and policy reform, incorporating right to health obligations and principles including equity, participation, and accountability in designing, implementing, and monitoring the health sector, as well as an all-of-government approach in advancing the public's health; 2) litigation, using creative legal strategies, enhanced training, and promotion of progressive judgments to increase courts' effectiveness in advancing the right to health; 3) civil society and community engagement, empowering communities to understand and claim this right and building the capacity of right to health organizations; and 4) innovative global governance for health, strengthening World Health Organization leadership on health and human rights, further clarifying the international right to health, ensuring sustained and scalable development assistance, and conforming other international legal regimes (e.g., trade, intellectual property, and finance) to health and human rights norms. We offer specific steps to advance each of these areas, including how a new global health treaty, a Framework Convention on Global Health, could help construct these four pillars.
Saturday, June 23, 2012
Friedman & Gostin: Pillars for Progress on the Right to Health: Harnessing the Potential of Human Rights Through a Framework Convention on Global Health
- Ashique Rahman, An Insight into the Application of Arbitral Theory: Arising Judicial Practice
- Nathalie Allen & Daisy Mallett, Arbitrator Disclosure — No Room for the Colour Blind
This paper discusses transparency in the working method of the United Nations Security Council. It describes the institutional design of the organ and the evolution of Security Council powers, and seeks to identify whether there is an obligation for the Council to act in a transparent manner in the exercise of its powers. The paper argues that transparency is an 'ancillary' obligation incumbent on the Council, to allow for decentralised control over the exercise of its powers by Member States of the UN. Transparency having no independent normative charge, we do not how much of it is good--this is determined by a pattern of protest and reaction between the Security Council and the Member States called upon to implement its decisions.
Friday, June 22, 2012
Call for Submissions: Reservations to Treaties
The editors of the International Community Law Review are pleased to announce a call for papers for a special issue of the journal on ‘Reservations to International Treaties’.
The International Community Law Review is a peer-reviewed academic journal, published quarterly by Brill/Nijhoff. The journal addresses all aspects of international law and the international community, and aims to explore the implications of various traditions of international law and how the international community uses and adapts international law to deal with new and emerging challenges.
Submissions are invited for the special issue on all aspects of the topic, particularly those commenting on the International Law Commission’s 2011 Guide to Practice on Reservations to Treaties, and the report of Special Rapporteur Mr Alan Pellet. Areas of interest may include:
- The effect of impermissible reservations
- Temporal limitations on the lodging of objections to impermissible reservations
- The impact of interpretive declarations
- Reservations to human rights treaties
All those with an interest in the subject are invited to contribute articles for publication in the special issue. Proposals for papers should be should be no more than 15000 words, and be submitted to the editors here by 31st January 2013. Publication is expected in the third quarter of 2013.
For further information please contact Sarah Singer at firstname.lastname@example.org
Over the last decade or so a new dialogue has emerged between international relations (IR) theorists interested in the social creation of identity and who focus attention on the role of norms in international politics, and international law (IL) scholars for whom normative evolution is a stock-in-trade. These norm-interested IR thinkers have been labeled “constructivists.” Although we argue that constructivists have yet to fully exploit the mutual learning that is possible in the interaction of constructivist IR thinking and international legal theorizing, there is a promising openness to dialogue. Constructivism helps explain how IL can exist and influence behavior, and IL can help inform a richer understanding of the particular roles of different categories of norms in international society. Constructivist work has so far focused upon the building of social norms through interaction, and on the pathways through which they come to influence actors. Overall, too little effort has been expended upon tracing out the distinctions between social and legal norms, but there is nothing in constructivism that denigrates the distinction or resists such analysis, as some recent work has shown. In this chapter we canvass the reasons underlying the emergence of constructivist thought in IR, and trace out its major preoccupations (Part II). We then highlight key themes in constructivist engagement with IL (Part III), before detailing how international lawyers have deployed constructivist insights (Part IV). Next, we canvass central themes in the interdisciplinary dialogue between constructivism and international law (Part V). Finally, we evaluate the most salient insights and contributions of the literature to date, and identify gaps and productive directions for future work (Part VI).
- Bryan Mercurio, Beyond the Text: The Significance of the Anti-Counterfeiting Trade Agreement
- Mitali Tyagi, Flesh on a Legal Fiction: Early Practice in the WTO on Accession Protocols
- Baris Karapinar, Defining the Legal Boundaries of Export Restrictions: A Case Law Analysis
- William J. Moon, Essential Security Interests in International Investment Agreements
- Chris Downes, The Impact of WTO Transparency Rules: Is the 10,000th SPS Notification a Cause for Celebration?—A Case Study of EU Practice
- Luca Rubini, Ain’t Wastin’ Time No More: Subsidies for Renewable Energy, The SCM Agreement, Policy Space, and Law Reform
- Federico Lupo Pasini, Movement of Capital and Trade in Services: Distinguishing Myth from Reality Regarding the GATS and the Liberalization of the Capital Account
- Sherzod Shadikhodjaev, How to Pass a Pass-Through Test: The Case of Input Subsidies
- Jong Bum Kim, Dual WTO Notifications of RTAS with Non-Reciprocal Trade Liberalization
- David Collins, Alternative Dispute Resolution for Stakeholders in International Investment Law
- Martin Holbraad & Morten Axel Pedersen, Revolutionary securitization: an anthropological extension of securitization theory
- Owen Parker, The ethics of an ambiguous cosmopolitics: citizens and entrepreneurs in the European project
- Joseph Hoover, Reconstructing responsibility and moral agency in world politics
- Jamie Mayerfeld, No peace without injustice: Hobbes and Locke on the ethics of peacemaking
- Edward A. Page, Give it up for climate change: a defence of the beneficiary pays principle
The United Nations Convention on the Law of the Sea (UNCLOS) offers a legal framework for the sustainable development of the oceans and their natural resources. However, recently there have been calls to amend the Convention due to some ambiguous provisions which are unable to address a variety of contemporary maritime issues.
This book evaluates the applicability and effectiveness of UNCLOS as a settlement mechanism for addressing ocean disputes. The book’s central focus is on the South China Sea (SCS) dispute, one of the most complex and challenging ocean-related conflicts in the world. The book examines the ways in which an emphasis on sovereignty, threats to maritime security and overlapping maritime claims caused by the newly established maritime regimes authorized by UNCLOS are all contributing factors to the SCS dispute. The book considers the internal coherence of the Law of the Sea Convention regime and its dispute settlement procedures. It looks at participation in the UNCLOS negotiations, maritime legislation, and the dispute settlement practice of relevant States party to the SCS dispute. The author goes on to explore the relationship between UNCLOS and the regimes and institutions in the SCS, particularly in regard to issues of maritime security, marine environment protection, joint development of oil and gas and general political interaction. The author proposes practical mechanisms to resolve the dispute whilst also offering a final judgement on the effectiveness of UNCLOS for settling disputes. UNCLOS and Ocean Dispute Settlement will be of particular interest to academics, students and policy makers of international, shipping and maritime law as well as being of interest to academics and students in the field of international relations.
Thursday, June 21, 2012
This essay examines the philosophical justifications for giving priority to sex crime prosecutions at international courts. Despite the increased focus on prosecuting sex crimes in recent years, no effort has been made, either at the tribunals or in the scholarship, to develop such justifications. Those who prosecute and write about sex crimes generally assume that international courts should focus particular attention on such crimes. Commentators sometimes point to the practical and institutional benefits of thematic sex crime prosecutions. Such prosecutions can, for example, increase an institution’s capacity to address sex crimes by developing relevant investigative and prosecutorial expertise and expanding the applicable law. But a prior normative question must be addressed: why should international courts give priority to sex crimes when allocating scarce resources?
I argue that the philosophical grounding for thematic sex crime prosecutions must be found in the underlying purposes of international criminal courts. While the moral justifications of international prosecutions are widely disputed, there are four primary contenders: retribution, deterrence, restoration, and expression. In the first part of the essay, I explain why none of the first three theories precludes giving priority to sex crime prosecutions. In fact, each theory supports such prosecutions, at least under some circumstances. I then explain that the strongest justification for giving priority to sex crimes is found in the expressive rationale for international criminal law. In other words, if international criminal law aims to express global norms it should often seek to promote the norms against sex crimes even at the expense of other important norms. The need for such special emphasis lies in the history of under-enforcement of sex crimes in both national and international for a as well as in the discriminatory expression inherent in the crimes themselves.
We are pleased to announce a forthcoming TDM special issue on "Corruption and Arbitration."
Edited by Prof. Dr. Richard Kreindler (Shearman & Sterling LLP) and Carolyn B. Lamm (White & Case LLP) this special issue will analyze new trends, developments, and challenges respecting the intersection between on the one hand allegations, suspicions or findings of corruption and on the other hand decisions by arbitral tribunals regarding jurisdiction, admissibility and the merits of commercial and investment disputes.
It has been some 40 years since an acute focus was placed, perhaps for the first time, on how an arbitral tribunal can, should or must conduct itself in the face of suspected or manifest illegality of the parties. The award in ICC Case No. 1110 (1963), rendered by Gunnar Lagergren, cast a sharp focus on issues of arbitration, including competence-competence and severability of the arbitration agreement, in the face of a suspected or manifestly illegal contract.
Since that time, in the commercial realm various awards, court rulings and commentaries have addressed corruption or bribery in the formation and performance of contracts containing an agreement to arbitrate. Emanating from various jurisdictions and legal cultures, they have displayed as many elements of anecdotalism as of convergence, and by no means given rise to a complete consensus or reconcilability of views.
In parallel, particularly over the last decade, in the investment dispute realm ever more ICSID and other arbitral tribunals have had to grapple with issues of corruption, including ones related to the particular treaty basis for "consent" to arbitrate such disputes. Not surprisingly, here too there has not been a uniformity of approaches although certain trends have indeed begun to emerge.
The evolution in thinking respecting the arbitrator's rights and duties in connection with corruption has been accompanied by a profusion of new or amended bodies of national arbitration legislation and adoption of the UNCITRAL Model Law in whole or part in certain active arbitration locales. In addition, over the last several years a number of states have acceded to multilateral conventions condemning illegal contracts, corruption, bribery of public officials, etc. These accessions have arguably contributed to, or confirmed, the development of certain national and transnational concepts of public policy in abhorrence of corruption. Prominent among such conventions are the 1997 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the 1999 Conventions of the Council of Europe, and the 2000 United Nations Convention against Transnational Organized Crime. Most recently, the UK Bribery Act enacted in 2011 comprehensively addressed the issue of bribery overseas by UK and multinational companies.
Against this background, the Special Issue intends to identify, critique and reconcile the different strands where possible and desirable, both from the arbitrator's and the party's perspective. The potential scope of the subject is indeed vast and possible topics for submission might include:
- How can, should or must an arbitral tribunal act in the face of suspected corruption in a contract or an investment underlying the parties' dispute? How should a tribunal act in the face of corruption which is admitted or otherwise manifest?
- Should the nature of the would-be illegality make a difference to the tribunal's assessment of its own jurisdiction? Of the separability of the agreement to arbitrate? Of arbitrability?
- When should the issue of jurisdiction hinge on whether the corrupt act arguably tainted the contract or investment ab initio, as opposed to an illegality arising or becoming apparent only in the course of later performance?
- Given suspected or manifest corruption, which standards of substantive law should apply as to whether and how to proceed respecting jurisdiction, admissibility, separability, arbitrability and the merits of the dispute? How should tribunals address differences in national law respecting the activities of agents, intermediaries and lobbyists? How should they reconcile national law with possibly competing "transnational public policy" or "international public policy"?
- What challenges exist in terms of attribution of corrupt actions or knowledge of such actions to a state party in commercial arbitration, in investment arbitration, including in the context of the 2001 ILA Draft Articles on Responsibility of States?
- How should burden of persuasion, burden of proof and the standard of proof be approached when faced with allegations or suspicions of corruption? What standard or standards should apply when and why? -- Can the rights and duties of the arbitrator to investigate corruption, including on his or her own initiative, be meaningfully identified? What about when such action collides or might collide with investigative efforts already undertaken or which might still be undertaken by national criminal authorities?
- What justifications, excuses and defenses may exist to estop a party from invoking corruption on the part of the other party? What of the "unclean hands" doctrine and similar approaches?
- What should be the legal consequences of a finding of corruption in commercial arbitration, in investment arbitration? When is it a question of jurisdiction, when of admissibility and when of the merits?
- At the enforcement stage, what tensions may exist, where corruption has been alleged or proven, between the (un)enforceability of an arbitral award at the seat and the (un)enforceability of the same award in a foreign court? What limits should apply to de novo review by the foreign reviewing court?
- What tools do arbitrators have, or not have, to investigate allegations of corruption, particularly when third parties may be involved?
This special issue will be edited by:
Prof. Dr. Richard Kreindler
Partner, Shearman & Sterling LLP
Carolyn B. Lamm
Partner, White & Case LLP
Contact details here.
Publication is expected in January 2013. Proposals for papers should be submitted to the editors by July 31, 2012.
Fidler: Recent Developments and Revelations Concerning Cybersecurity and Cyberspace: Implications for International Law
Wednesday, June 20, 2012
Tuesday, June 19, 2012
In the case concerning Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), the International Court of Justice (ICJ) held that rules of jus cogens forming part of the law of armed conflict did not automatically displace hierarchically lower rules of State immunity. The Court’s decision was based on the rationale that there was no conflict between these rules as they addressed different matters. The jus cogens rules were substantive rules of international law while the rules of State immunity were procedural in character. The distinction between substantive rules of a jus cogens character and procedural rules has been criticized for its ‘excessive formalism’. It has been called ‘detached from the reality of human rights protection’, a ‘purely theoretical construct’, ‘misguided’, ‘artificial’ and ‘illusory’. The distinction has been identified as one of the ‘conflict avoidance techniques’ resorted to by international and domestic courts to sidestep questions of normative hierarchy. Many of the arguments and criticism seem to be motivated by the unwanted result of the ‘substantive–procedural’ distinction, namely the de facto impunity for the most serious human rights violations, rather than by the distinction itself. This paper takes a step back from the alleged antinomy of substantive human rights norms of a jus cogens character and procedural rules of immunity and attempts to broaden the picture by looking at the relationship between substantive and procedural rules more generally. It is shown that substantive rules of a jus cogens character generally leave procedural rules unaffected and, in particular, do not automatically override such rules. Depending on the circumstance, substantive rules may, however, have a certain (limited) effect upon the interpretation and application of procedural rules. It is argued that the ‘substantive–procedural’ distinction is well established in international law and makes eminent sense even when substantive rules of jus cogens and procedural rules of immunity are involved.
National debts incurred by illegitimate regimes against the best interests of the citizens is a serious problem of international economics and politics. These sovereign debts, often referred to as odious debts, deplete the public purse and create an ongoing financial liability that serves to constrain investment and economic growth, and conspires to keep millions in poverty. This important and timely book explains the legal principles and politics involved in the issue of odious debts, and sovereign debt arrangements more generally. The author goes beyond abstract arguments and proposes legal rules and international regulation that should be put in place to create the right incentives to stop the transmission of odious debts. Her proposal is for a registration scheme for sovereign debt, and the imposition of positive duties on financiers who provide loans to sovereign borrowers.
Monday, June 18, 2012
The relationship between German domestic law and public international law is often described as one of 'openness’ or 'friendliness towards international law.' The main gateway for international law into German domestic law is Article 25 of the Constitution which provides that the 'general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.’ The 'general rules of international law’ include the rules of customary international law, including jus cogens, and the general principles of law recognized by civilized nations. Customary international law, however, does not require that all States have expressly consented to these rules. Germany thus need not necessarily have recognized such a rule for it to become an integral part of federal law.
In recent years, rules of customary international law have increasingly been 'found’ by domestic, international and internationalized tribunals without due regard for the opinio juris and practice of States. There is thus a possibility of customary international law rules emerging in the future which may not necessarily be in line with German basic laws and values. For example, Holocaust denial could well be covered by customary international law rules on freedom of expression and 'Scientology’ could benefit from customary international law rules on freedom of religion. The paper therefore examines whether there exist any limitations to the application of general rules of international law in German domestic law. Limits are developed both from customary international law itself as well as from German constitutional law. In particular, the division of powers as well as the principle of the rule of law (the requirement that any act limiting individual freedoms must have a statutory basis and must be clear and foreseeable) and the principle of democracy preclude certain customary international law rules from becoming an integral part of federal law.
- Simon Rushton & Owain David Williams, Frames, Paradigms and Power: Global Health Policy-Making under Neoliberalism
- Christopher L. Pallas, Identity, Individualism, and Activism beyond the State: Examining the Impacts of Global Citizenship
- Jean-Philippe Thérien, Human Security: The Making of a UN Ideology
- Alexis Heraclides, Humanitarian Intervention in the 19th Century: The Heyday of a Controversial Concept
- Diana Amnéus, Responsibility to Protect: Emerging Rules on Humanitarian Intervention?
This article is a response to David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int'l L.J. 135 (2012).
David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. The author agrees with much of it, as he agrees with much of Professor Sloss’ other writing on treaties. In particular, the author agrees that the two-step approach to treaty enforcement that Professor Sloss proposes is generally the right approach, and he agrees that the “intent-based” approach to the self-execution issue that Professor Sloss criticizes is highly problematic. But he disagrees with Professor Sloss about the source of this problematic approach.
The much-controverted question of treaty self-execution is widely understood to concern whether a treaty may be enforced directly by the courts or must instead await legislative implementation. Professor Sloss proposes a two-step analysis for addressing this question. The first step is to determine what the treaty obligates the United States to do. This is a question of treaty interpretation, to be answered through the application of the international law of treaty interpretation. The second step is to identify which domestic officials have the power and duty to enforce the obligation. This, Professor Sloss argues, is entirely a matter of U.S. domestic law, not a matter of treaty interpretation. Courts and commentators have fallen into error, and produced much confusion, by treating the second question as one of treaty interpretation, seeking an answer in the text of the treaty or in the parties’ intent. Professor Sloss notes that treaties seldom address the question of which domestic officials — legislative, executive, or judicial — are responsible for enforcing the treaty. Instead, treaty parties almost always leave that question to the domestic law of the states-parties.
The author states that Professor Sloss is entirely correct to note that seeking the answer to this question in the treaty itself is highly problematic. Although there is nothing in international law that prevents states from addressing that question in the treaty itself, the fact is that states almost never do so. Domestic officials take their cues from domestic law, and states have very different constitutional rules concerning the need for legislative implementation of treaties. In the United Kingdom and most nations of the British Commonwealth, treaties are never enforceable in the courts until they have been implemented by legislation. The constitutional law of other countries permits the direct judicial enforcement of some treaties but not of others. In the United States, for example, treaties that require the criminalization of conduct or the appropriation of money must be legislatively implemented because the Constitution has been interpreted to require a statute for those purposes. Because of the diversity of domestic constitutional rules on the question, states rarely, if ever, address the issue of domestic implementation in the treaties they conclude. Seeking an answer to the self-executing question in the treaty itself is thus, in Justice Breyer’s words, like “hunting [for] the snark.” No matter how hard they look, the courts will almost never find an answer there.
States instead leave the question to the domestic law of each state-party. The most relevant provision of our Constitution is the Supremacy Clause, which provides that “all Treaties” of the United States are “the supreme Law of the Land,” and instructs judges to give them effect. This clause, the author argues, was intended to reverse the British rule, which we would otherwise have inherited. It establishes that treaties in the United States do not, as a constitutional matter, always require implementing legislation, and it appears to establish that treaties are judicially enforceable in the same circumstances as constitutional and statutory provisions of like content. The first task for a court confronted with a treaty should thus be to identify the treaty’s content, which, as Professor Sloss argues, is a matter of treaty interpretation. The next step should to be to ask whether the obligation imposed by the treaty is one that would be judicially enforceable if it were found in a statute. Thus, as with statutes, a treaty would not be judicially enforceable if it were unconstitutional — for example, if it purported to accomplish something for which the Constitution requires a statute, such as criminalization of conduct or appropriation of money. Similarly, a treaty would not be judicially enforceable if it imposed an obligation requiring the exercise of political judgment. This category would include treaties that set forth aspirations or that contemplate the exercise of discretion requiring political judgment. But, as Professor Sloss correctly argues, a treaty imposing a non-discretionary duty of government to behave in a determinate way towards individuals should not generally give rise to questions regarding its judicial enforceability at the behest of such individuals.
Sunday, June 17, 2012
von Bogdandy & Venzke: On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority
This contribution presents international judicial institutions as multifunctional actors against the background of a traditional understanding, which sees just one function: settling disputes. The traditional, one-dimensional understanding eclipses other important functions that many international courts do actually perform in contexts of global governance and it underrates problems in their legitimation. In order to appreciate the many contributions of contemporary adjudication to social interaction, the paper first identifies three more functions beyond dispute settlement: the stabilization of normative expectations, lawmaking, and the control as well as legitimation of authority exercised by others. It then places these functions within broader normative understandings of international courts, which respectively picture them as instruments of the parties in a state-centred world order, as organs of a value-based international community, and as institutions of specific legal regimes. The distinct problems that each of these basic understanding faces ultimately lead to the contours of a new paradigm for the study of international courts as actors exercising public authority. The present functional analysis ultimately helps to refine both the phenomenon and normative questions.