Traditional international law was firmly rooted in the assumption that no international obligation could ever trump the national public interest. This sovereigntist account of public interest has been replaced by a constitutionalist account. Hence, human rights law and trade law allow for national public interest considerations, but the international agreements require states to submit their policies to international adjudication. The study gives a comprehensive overview of the case law of the Strasbourg organs, of the ECJ and of the WTO dispute settlement bodies with regard to the so-called escape clauses of the respective treaties. Recently, a third communal account of public interest has become important. A global common good requires international law to adapt its structures and to overcome its horizontal architecture. The study investigates into the various doctrinal elements which are invoked in the name of a global public interest, such as jus cogens, norms erga omnes or the ‘common heritage of mankind’. Original in its approach, the study concludes that the use of ordre public in private international law may be a way of accommodating universal conceptions of the public interest with national conceptions.
Saturday, September 29, 2012
Friday, September 28, 2012
ASIL’s International Organizations Interest Group is seeking contributions for a new round of Reports on International Organizations (RIO). These short (1000 to 1200-word) reports are designed to highlight recent legal developments in international organizations, including smaller and lesser known organizations.
We are currently seeking reports on new and established international organizations in which significant legal events have taken place in the past year.
To submit a proposal for a new report, after consulting the Guidelines for Authors and the Archive of previous reports, please send an email to email@example.com including your name, affiliation (position and organisation), the international organization proposed for the report, and a brief description (up to 100 words) of the legal development or event arising in relation to that organization that you propose to write about.
Tania Voon, Associate Professor, Melbourne Law School, Coordinator of the ASIL RIO Project
Richard Burchill, Reader, University of Hull Law School, Associate Coordinator of the ASIL RIO Project
This collection of documents brings together a large number of primary sources on the peaceful settlement of disputes in a usable and affordable format. The documents included reflect the diverse techniques of international dispute settlement, as recognised in Articles 2(3) and 33 of the UN Charter, such as negotiation, mediation, arbitration and adjudication. The book comprises the most relevant multilateral treaties establishing dispute settlement regimes, as well as examples of special agreements, compromissory clauses, optional clause declarations and relevant resolutions of international organisations. It covers both diplomatic and adjudicative methods of dispute settlement and follows a basic division between general dispute settlement mechanisms, and sectoral regimes in fields such as human rights, WTO law, investment, law of the sea, environmental law and arms control. The book is the first widely-available collection of key documents on dispute settlement.
Brölmann: The Permanent Court of International Justice and the International Rights of Groups and Individuals
The Permanent Court of International Justice was established in a period in which the position of the State as the natural form of political organization had come under pressure, among others, in academic-legal circles. It was also the period in which international-legal concern for groups within the State became institutionalized, notably through the efforts of the League of Nations. And while the League brought institutional and procedural novelties, the Permanent Court - without much doctrine or precedent to rely on - contributed on significant points to the development of international law regarding non-State groups and individuals. It is a matter of debate whether in the interbellum international ‘rights’ or only ‘benefits’ for these entities were at issue but the Permanent Court’s contribution to the legal emancipation of individuals and - especially - minorities is undisputed (think for instance of the notion of 'formal and substantive equality’, the element of 'self-identification' as it came to be called in the 1970s, and the ‘factual approach’ to the existence of minorities or other legally relevant groups). This paper traces the contours of that contribution in the international-legal context of the time and in some hallmark PCIJ decisions.
In stark contrast to areas such as trade and investment, international cooperation on migration is scant. The lack of cooperation is puzzling given the important international externalities associated with national immigration policies. This paper identifies the relevant externalities, and suggests why cooperation is nevertheless difficult to achieve. It also offers an explanation for the one form of cooperation that we do observe with some regularity, namely, international agreements permitting the temporary movement of certain classes of workers.
This paper considers overlaps between the law of the World Trade Organization, international human rights law, and cultural laws and regulations in domestic and international contexts. The paper considers in particular the treatment of 'cultural products' (audiovisual products and printed publications) in the WTO, the significance of different cultural attitudes to food risks under WTO law, and the intersection between culture, human rights and intellectual property in connection with traditional knowledge, genetic resources, and geographical indications in the WTO. The paper takes into account United Nations pronouncements on human rights implications of international trade law.
Thursday, September 27, 2012
Sari & Wessel: International Responsibility for EU Military Operations: Finding the EU’s Place in the Global Accountability Regime
The Lisbon Treaty has reconfirmed the EU’s intention to advance its interests and values on the international scene in a more proactive manner, including through the conduct of crisis management missions in third countries as part of its Common Foreign and Security Policy (CFSP). Although most missions launched by the Union so far have been relatively modest in their size and objectives, even small-scale operations may give rise to a breach of international law or cause damage and injury to private parties. Yet holding EU missions accountable for their activities is hampered by a range of legal and practical difficulties. One particularly thorny issue concerns the attribution of the wrongful acts committed by EU military operations: since they are composed of personnel made available to the Union by its Member States and third States, it is not immediately obvious which party—the EU, the contributing States or both—should bear responsibility for their conduct. This question is of great practical significance, for accountability cannot be discharged effectively if it is unclear where responsibility lies. The purpose of this chapter is to revisit this issue and establish what rules govern the attribution of wrongful acts committed by EU military operations.
We begin our analysis by noting that no special considerations justify the application of lex specialis rules of attribution to EU crisis management missions. While this means that such missions are subject to the general rules of attribution laid down in the International Law Comission's (ILC) Draft Articles on the Responsibility of International Organizations (DARIO), we argue that the way in which the ILC purports to apply these rules to peacekeeping operations is too narrow. Contrary to the approach adopted by the ILC, any attempt to establish where responsibility lies for the wrongful conduct of EU missions must first of all clarify their position within the legal order of the EU. To this end, we assess the legal framework and practice of EU military operations in order to establish whether they constitute either de jure or de facto organs of the Union. Based on this analysis, we submit that to be able to contribute to the governance of global security the EU should accept that the wrongful conduct of its crisis management missions are, in principle, attributable to it and seize the opportunity to contribute to the development of the law of international responsibility in this area.
- Anne Julie Semb, Why (not) Commit? - Norway, Sweden and Finland and the ILO Convention 169
- Eeva Nykänen, On the Lines of Demarcation and Their Significance - the Categories of Complementary Protection under the Finnish Aliens Act
- Aksel Tømte, Constitutional Review of the Indonesian Blasphemy Law
Much of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peńa-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was the prevailing view at the time — a view that has subsequently been dubbed the “modern position.” It was the view set forth in the black letter of the Restatement (Third) of Foreign Relations Law. Filártiga triggered a revisionist challenge to the modern position, with revisionists arguing that customary international law has the status of federal law only if given that status through statute or treaty, or perhaps through sole executive action; in the absence of such incorporation, customary international law has, at best, the status of State law in our legal system.
Much of the ensuing scholarly debate about the status of customary international law has focused on human rights litigation under section 1350. The debate continues in the currently pending Kiobel v. Royal Dutch Petroleum Co., which, like Filártiga, concerns the applicability of section 1350 to litigation between two aliens based on human rights violations that occurred abroad.
The focus on section 1350 — by critics and defenders of the modern position alike — has unfortunately diverted attention from the key concerns driving the modern position. The core tenets of the modern position are that customary international law is binding on the States, that federal interpretations of such law are binding on State courts, and that State court decisions regarding such law are reviewable in the federal courts. The modern position is based on an important structural insight well articulated by Hamilton in The Federalist: “[T]he peace of the WHOLE ought not to be left at the disposal of a PART.” The costs of a violation of international law by a state are borne by the nation, yet the benefits are enjoyed by the state alone. Though critics of the modern position have directed much of their fire at alien tort claims, these cases have never directly implicated the core of the argument for treating customary international law as federal law, and the fate of such claims does not depend on adopting or rejecting the modern position.
- Chris Thornhill, Contemporary constitutionalism and the dialectic of constituent power
- Alexander Somek, On cosmopolitan self-determination
- Andrew Jillions, Commanding the commons: Constitutional enforcement and the law of the sea
- Eric Brousseau, Jerome Sgard & Yves Schemeil, Delegation without borders: On individual rights, constitutions and the global order
- Michael N. Barnett, International paternalism and humanitarian governance
- T. Majzoub, Les « glaciers de montagne transfrontières », irréductible peau de chagrin ? (De quelques pistes juridiques pour sauvegarder les glaciers)
- M. Paradelle, Lorsque la norme juridique fait fi des températures. La restauration de l'harmonie communautaire au fondement des traditions juridiques égyptienne, rwandaise et inuit
- M. Nounckele, Aux frontières de la comparaison
Wednesday, September 26, 2012
Joyner & Roscini: Non-Proliferation Law as a Special Regime: A Contribution to Fragmentation Theory in International Law
- Daniel H. Joyner & Marco Roscini, Introduction
- Malgosia Fitzmaurice & Panos Merkouris, Amendment and modification of non-proliferation treaties
- Andrew Michie, Provisional application of non-proliferation treaties
- Nigel White, Interpretation of non-proliferation treaties
- Eric Myjer & Jonathan Herbach, Violation of non-proliferation treaties and related verification treaties
- Daniel H. Joyner & Marco Roscini, Withdrawal from non-proliferation treaties
- Matthew Happold, The 'injured state' in case of breach of a non-proliferation treaty and the legal consequences of such a breach
- Sahib Sing, Non-proliferation law and countermeasures
- Dieter Fleck, State responsibility consequences of termination of or withdrawal from non-proliferation treaties
- Daniel H. Joyner & Marco Roscini, Conclusions
Jacques: Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law
With 'displacement' as the guiding thread, the purpose of this study is twofold. Firstly, it derives from the relevant provisions of international humanitarian law a legal framework for the protection of displaced persons in armed conflict, both from and during displacement. It contains a case study on Israeli settlements in the Occupied Palestinian Territory and the recent Advisory Opinion on the Separation Wall, and addresses such issues as humanitarian assistance for displaced persons, the treatment of refugees in the hands of a party to a conflict and the militarisation of refugee camps. Secondly, it examines the issue of displacement within the broader context of civilian war victims and identifies and addresses the normative gaps of international humanitarian law, including the inadequacy of concepts such as 'protected persons' and the persistence of the dichotomy between international and non-international armed conflicts, which is at odds with the realities of contemporary armed conflicts.
- Thomas Schultz & Robert Kovacs, The Rise of a Third Generation of Arbitrators? – Fifteen Years after Dezalay and Garth
- Phillip Landolt, Arbitrators’ Initiatives to Obtain Factual and Legal Evidence
- Michael Hwang & Nicholas Thio, A Contextual Approach to the Obligation of Confidentiality in Arbitration in Singapore – An Analysis of the Decision of the Singapore High Court in AAY and Others v. AAZ
- Lin Yifei, Judicial Review of Arbitration Agreements in China
- Jennifer L. Gorskie, US Courts and The Anti-Arbitration Injunction
- Paolo Esposito & Jacopo Martire, Arbitrating in a World of Communicative Reason
- Clifford J. Hendel, Perspectives on Three Recent Annulment Decisions from Spain – Is Where You Stand Determined by Where You Sit?
- Brendan McGivern, The TBT Agreement Meets the GATT: The Appellate Body Decision in US – Tuna II (Mexico)
- Faisal Al-Nabhani, The TBT Agreement: Examining the Line Between Technical Regulations and Standards
- Jan Bohanes & Rueda Garcia, Case Note Part One: Appellate Body Report in United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint) (DS353) (US – Boeing)
- Lawrence A. Kogan, Coherent International Trade Policies Hasten, Not Retard, Cloud Computing
- Philipp Habegger, The Revised Swiss Rules of International Arbitration – An Overview of the Major Changes
- Ulrich Haas & Anne Hossfeld, Die (neue) ZPO und die Sportschiedsgerichtsbarkeit
Tuesday, September 25, 2012
- Symposium: Testing the Waters: Assessing International Responses to Somali Piracy
- Bibi van Ginkel & Maggie Gardner, Foreword
- Bibi van Ginkel & Lennart Landman, In Search of a Sustainable and Coherent Strategy: Assessing the Kaleidoscope of Counter-piracy Activities in Somalia
- Jatin Dua & Ken Menkhaus, The Context of Contemporary Piracy: The Case of Somalia
- Douglas Guilfoyle, Prosecuting Somali Pirates: A Critical Evaluation of the Options
- Maggie Gardner, Piracy Prosecutions in National Courts
- Christopher Spearin, Private Military and Security Companies v. International Naval Endeavours v. Somali Pirates: A Security Studies Perspective
- Alice Priddy & Stuart Casey-Maslen, Counter-piracy Operations by Private Maritime Security Contractors: Key Legal Issues and Challenges
- Mark T. Nance & Anja P. Jakobi, Laundering Pirates?: The Potential Role of Anti-money Laundering in Countering Maritime Piracy
- Symposium: The Lubanga Trial Comes to an End - Reflections on the First Conviction by the International Criminal Court
- Guido Acquaviva, Foreword
- Larry D. Johnson, The Lubanga Case and Cooperation between the UN and the ICC: Disclosure Obligation v. Confidentiality Obligation
- Lucia Catani, Victims at the International Criminal Court: Some Lessons Learned from the Lubanga Case
- Rosalynd C. E. Roberts, The Lubanga Trial Chamber’s Assessment of Evidence in Light of the Accused’s Right to the Presumption of Innocence
- Roman Graf, The International Criminal Court and Child Soldiers: An Appraisal of the Lubanga Judgment
- Steffen Wirth, Co-perpetration in the Lubanga Trial Judgment
- National Prosecution of International Crimes: Cases and Legislation
- Andreas Laursen, A Danish Paradox?: A Brief Review of the Status of International Crimes in Danish law
If one were to affix a label to the first decade of work by the UN International Law Commission in this century, a good one to choose would be the “decade of codifying international responsibility.” No fewer than five projects relating to that general topic were brought to a conclusion by the Commission in the space of ten years, constituting a formidable effort at codification that may well influence the field of public international law for years to come. Given that the Commission had spent decades considering, as part of a single project, myriad aspects of state responsibility, in some respects these five projects may be seen as the product of a “divide and conquer” approach. Rather than a single instrument, the Commission produced five instruments directed at different slices of the field, with considerable variations among them in breadth, form, and the understanding of whether they reflect settled law. The book under review here, edited by Professor Crawford, Alain Pellet, and Simon Olleson, reflects an important effort to illuminate the law in this area through expert commentary by academics and practitioners.
- October 5, 2012: The Scholar and International Legal Practice: A Panel Discussion on the Occasion of the Launch of Brownlie's Principles, with Colin Warbrick, Vaughan Lowe, Christine Gray, James Crawford, and chaired by Marc Weller
- October 12, 2012: Malcolm Shaw (Essex Court Chambers; Univ. of Leicester - Law), The International Court of Justice and Territorial Questions
- October 19, 2012: Elihu Lauterpacht (Univ. of Cambridge - Law), International Law: Recollections and Reflections
- October 26, 2012: Mark Drumbl (Washington and Lee Univ. - Law), Reimagining Child Soldiers in International Law and Policy
- November 2, 2012: Mads Andenas (Univ. of Oslo - Law), Centre Reasserts Itself: The ICJ and the Unity of International Law
- November 9, 2012: Marc Weller (Univ. of Cambridge - Law), Mediating the Arab Spring: Some Legal Issues
- November 16, 2012: Catherine MacKenzie (Univ. of Cambridge - Law), Wombats, Weapons and Water: Environmental Protection and the Law of Armed Conflict
- November 19, 2012: Sonia E. Rolland (Northeastern Univ. - Law), Development at the WTO: Looking Beyond the Doha Round
- November 23, 2012: Marcelo Kohen (Graduate Institute of International and Development Studies - Law), The Falklands/Malvinas and the Peaceful Settlement of Disputes
- November 30, 2012: International Law: the Year in Review (A Panel Discussion)
- Case Comments
- Andrea K. Bjorklund, Republic of Argentina v BG Group PLC
- Jean E. Kalicki & Mallory B. Silberman, Spyridon Roussalis v Romania
- Roland Kläger, Sergei Paushok, CJSC Golden East Company, CJSC Vostokneftegaz Company v Mongolia
- Martin J. Valasek & Éric-Antoine Ménard, Impregilo SpA v Argentine Republic and Hochtief AG v The Argentine Republic: Making Sense of Dissents: The Jurisprudence Inconstante of the MFN Clause
- Gabriel Cavazos Villanueva, El Paso Energy International Company v Argentine Republic
- Christina L. Beharry, Objections to Requests for Documents in International Arbitration: Emerging Practices from NAFTA Chapter 11
- Jürgen Kurtz, Australia’s Rejection of Investor–State Arbitration: Causation, Omission and Implication
- Stephan W. Schill, Cross-Regime Harmonization through Proportionality Analysis: The Case of International Investment Law, the Law of State Immunity and Human Rights
- Wenhua Shan, Norah Gallagher, & Sheng Zhang, National Treatment for Foreign Investment in China: A Changing Landscape
- Amokura Kawharu, The Negotiations for a Trans-Pacific Partnership Agreement
- Barton Legum & William Kirtley, The Status of the Report of the Executive Directors on the ICSID Convention
- Sergio Puig & Chester Brown, The Secretary-General’s Power to Refuse to Register a Request for Arbitration under the ICSID Convention
- J. Romesh Weeramantry, Investor–State Dispute Settlement Provisions in China’s Investment Treaties
- Editorial Comments
- Ma Xinmin, China's Mechanism and Practice of Treaty Dispute Settlement
- Michael Salter, Law, Power and International Politics with Special Reference to East Asia: Carl Schmitt's Grossraum Analysis
- John D. Haskell, Divine Immanence: The Evangelical Foundations of Modern Anglo-American Approaches to International Law
- Edward McWhinney, A New, Multicultural World Community and an Emerging New, Pluralistic World Order System
- Michael Sheng-ti Gau, Recent Decisions by the Commission on the Limits of the Continental Shelf on Japan's Submission for Outer Continental Shelf
- Mika Hayashi Dealing with Compliance and Non-Compliance: The Case of the Landmine Convention
Monday, September 24, 2012
- Topic: Demokratie - Wandel - kollektive Sicherheit: Das Völkerrecht und der Umbruch in der arabischen Welt
- Christian Tomuschat, The arabellion - legal features
- Matthias C. Kettemann, Das Internet als internationales Schutzgut: Entwicklungsperspektiven des Internetvölkerrechts anlässlich des Arabischen Frühlings
- Mattäus Fink, Grenzen des arabischen Wandels aufgrund von Investitionsschutzrecht?
- Tina Roeder, Traditional Islamic approaches to public international law - historic concepts, modern implications
- Nahed Samour, Modernized Islamic international law concepts as a third world approach to internationel law
Abels: Prisoners of the International Community: The Legal Position of Persons Detained at International Criminal Tribunals
This book addresses a specific aspect of international criminal law. It describes the legal position and conditions of persons detained under the jurisdiction of international criminal tribunals, particularly as regards their internal legal position, their rights and duties inside the remand facility. Central to the book is the understanding that the circumstances surrounding these persons’ detention are different from a domestic context.
The author’s primary aim is to disclose the law of detention of international criminal tribunals. The book sets out the applicable law, including the law’s underlying principles, and focuses on a number of specific procedural and substantive legal issues. As to procedural issues, it examines the available disciplinary and complaints procedures as well as procedures applicable to the designation of States for the enforcement of the tribunals’ sentences. In respect of substantive law, it focuses on the detainees’ right to contact with the outside world, including contact with their relatives, with their lawyers and with the media. The book further examines whether the positive law corresponds to the relevant international penal standards and human rights law.
As an outcome of immediate exchanges (interviews) between the author and the authorities involved, the author provides a substantial clarification and critical assessment of the current issues and paradoxes of the domain in question.
Criminal tribunals, truth commissions, reparations, apologies and memorializations are the characteristic instruments in the transitional justice toolkit that can help societies transition from authoritarianism to democracy, from civil war to peace, and from state-sponsored extra-legal violence to a rights-respecting rule of law. Over the last several decades, their growing use has established transitional justice as a body of both theory and practice whose guiding norms and structures encompasses the range of institutional mechanisms by which societies address the wrongs committed by past regimes in order to lay the foundation for more legitimate political and legal order.
In Transitional Justice, a group of leading scholars in philosophy, law, and political science settles some of the key theoretical debates over the meaning of transitional justice while opening up new ones. By engaging both theorists and empirical social scientists in debates over central categories of analysis in the study of transitional justice, it also illuminates the challenges of making strong empirical claims about the impact of transitional institutions.
- Rainer Hofmann & Christian J. Tams, International Investment Law and Its Others: Mapping the Ground
- Francisco Orrego Vicuña, The Other Side of the Coin: Recent Paradoxes of International Investment Arbitration
- Marc Jacob, Faith Betrayed: International Investment Law and Human Rights
- Markus Krajewski, International Investment Law and Human Rights: Beyond General Observations, Towards Greater Differentiation
- Isabel Feichtner, Thinking Utopia and Politics of Paradise
- Tarcisio Gazzini & Yannick Radi, Foreign Investment with a Human Face – with Special Reference to Rights of Indigenous Peoples
- Nikos Lavranos, Marrying the Beast and the Beauty
- Alessandra Asteriti, Waiting for the Environmentalists: Environmental Language in Investment Treaties
- David Gaukrodger, Recent Inter-State Dialogue on Environmental and Investment Policy at the OECD
- Valentina S. Vadi, The Beauty of Unity? Intellectual Property Rights versus Public Health in International Investment Arbitration
- Monika Polzin, International Investment Law and Domestic Public Law: A Theoretical Appraisal
- Pavel Šturma, Relations between International Investment Law and Domestic Public Law: No Love at First Sight
- Christoph Hölken, Conflicts between International Investment Law and Domestic Law
- Claudia Cinelli, Spain in the Arctic
- José Elías Esteve Moltó, Causes and Initial Effects of the Spanish Organic Law 1/2009 Reforming the Principle of Universal Jurisdiction in Spain
- Carlos Espaliú Berdud, The crime of maritime piracy in the 2010 reform of the Spanish Penal Code
Sunday, September 23, 2012
Alors qu'il s'agit d'une notion première et fondamentale, l'investissement international est soumis à une véritable inflation de définitions. Aux fins de les rationaliser, l'auteur les a analysées sous l'angle de leur fonctionnalité. Deux grands types de définitions en sont ressortis : celles ressortant de la logique de création d'une catégorie juridique et celles résultant d'une logique d'établissement d'un critère juridictionnel.
Une définition unitaire de l'investissement est-elle encore possible ? Une telle définition généralisante et univoque implique en réalité de d'abord s'interroger sur le concept d'investissement international et les obstacles auxquels il doit faire face. L'étude de ces obstacles a permis à l'auteur de révéler un réel manque. La quête de souplesse du droit de l'investissement international fragilise la stabilité et la sécurité juridiques. Un concept d'investissement international en tant que stabilisateur est donc nécessaire.
Dans le présent ouvrage, l'auteur dégage ce concept à partir des définitions étudiées et opère un tri entre occurrences incidentes et occurrences fondamentales.
This contribution to a symposium on Kiobel v. Royal Dutch Petroleum Co. examines two ways of looking at the question of corporate liability under customary international law. It argues that the Second Circuit was wrong to ask whether a “norm of corporate liability” exists in the abstract and that the proper question is whether the particular norm at issue — torture, for example — applies to juridical persons. The essay notes that all of the norms actionable under the Alien Tort Statute prohibit certain acts, irrespective of the perpetrator, and explains that state practice applying norms to natural persons may generate customary international law binding on juridical persons unless there is some difference between natural and juridical persons relevant to the norm.