Scholars cannot make law, just as little as lepidopterologists can ‘make’ butterflies. If they do so, they cease to be scholars and become legislators. This, however, is neither universally accepted nor can it stand as an unqualified statement. Even legal positivists realise that scholars appear to have a uniquely influential position in the ‘process’ of (international) law-making.There are two categorically different ways in which we can study the influence of scholars on international law-making: on the one hand, the factual or empirical influence of scholarship, palpable both in municipal and international contexts; on the other hand, there is the question of the specifically normativist view-point: how and where, if applicable, are legal scholars empowered by the law to contribute to the making of new law. Neither is better than the other and neither is more ‘worthy’, but neither should be admixed with the other.
This chapter first deals with the standard entry-point of legal scholarship to questions of international law-making: Article 38(1)(d) of the ICJ Statute. Section 2 will elucidate the role that scholars play ‘as subsidiary means for the determination of rules of law’. It will, however, primarily show the various restrictions of that subparagraph, in terms of the restricted usefulness of a lex arbitri for elucidating the wider theoretical question beyond the Court’s remit. Section 3 will discuss the sources (hierarchy) of law as the conceptual basis for the distinction between law-making and non-law making factors on a normativist account. It will also warn against the danger and show the problems that manifest themselves when different methods are admixed. Section 4 will turn to give a brief account of the sociological view on what factors influence international law-making, whether scholar-ship is part of that and what the restrictions are on such a view.
Saturday, December 1, 2012
Friday, November 30, 2012
- Tribute Issue: Antonio Cassese's International Criminal Justice
- I. Building International Criminal Justice
- George P. Fletcher, The Theory of Criminal Liability and International Criminal Law
- Robert Cryer, International Criminal Tribunals and the Sources of International Law: Antonio Cassese’s Contribution to the Canon
- Mary Fan, Custom, General Principles and the Great Architect Cassese
- Florian Jessberger & Julia Geneuss, The Many Faces of the International Criminal Court
- II. The Theory and Practice of International Criminal Law
- Jean-Marie Henckaerts, Civil War, Custom and Cassese
- Harmen van der Wilt, War Crimes and the Requirement of a Nexus with an Armed Conflict
- Sandesh Sivakumaran, Command Responsibility in Irregular Groups
- Gerhard Werle & Boris Burghardt, Do Crimes Against Humanity Require the Participation of a State or a ‘State-like’ Organization?
- Elies van Sliedregt, The Curious Case of International Criminal Liability
- James G. Stewart, Overdetermined Atrocities
- Thomas Weigend, Kill or Be Killed: Another Look at Erdemović
- III. Individual Criminal Responsibility in a World of States
- Mirjan Damaška, Unacknowledged Presences in International Criminal Justice
- Fergal Gaynor, Uneasy Partners — Evidence, Truth and History in International Trials
- Fannie Lafontaine, Universal Jurisdiction — the Realistic Utopia
- Bing Bing Jia, The Immunity of State Officials for International Crimes Revisited
- Micaela Frulli, Fact-Finding or Paving the Road to Criminal Justice?: Some Reflections on United Nations Commissions of Inquiry
- IV. Institutions and Procedures
- Volker Nerlich, The Confirmation of Charges Procedure at the International Criminal Court: Advance or Failure?
- Cécile Aptel, Prosecutorial Discretion at the ICC and Victims’ Right to Remedy: Narrowing the Impunity Gap
- Valentina Spiga, No Redress without Justice: Victims and International Criminal Law
- V. Anthology
- Antonio Cassese, The Nexus Requirement for War Crimes
- David Baragwanath, Abdulqawi A. Yusuf, Paola Gaeta, Georges Abi-Saab, Andrea Bianchi, James SC Crawford, John Jones, & O-Gon Kwon, Walking the Road He Paved — A Tribute to Antonio Cassese: The Hague Academy of International Law, The Hague, 16 November 2011
Tallberg & Smith: Dispute Settlement in World Politics: States, Supranational Prosecutors and Compliance
This article addresses one prominent expression of the interplay between politics and law in international cooperation: the dynamics of bargaining in the settling of compliance disputes. Our central argument is that the formal structure of dispute settlement systematically shapes the likelihood and terms of negotiated compliance settlements. We introduce an ideal type distinction between interstate dispute settlement, where the authority to sue states for non-compliance resides exclusively with states, and supranational dispute settlement, where this authority is partly or entirely delegated to a commission or secretariat with a prosecutorial function. We hypothesize that systems relying on supranational prosecution are more effective in addressing non-compliance, and more likely to mediate the impact of power asymmetries on dispute settlement outcomes, compared to systems relying on state-initiated complaints only. We find support for this proposition in a comparison of dispute settlement and compliance bargaining in the WTO and the EU.
- Bruce W. Jentleson, The Obama Administration and R2P: Progress, Problems and Prospects
- Thierry Tardy, The Dangerous Liaisons of the Responsibility to Protect and the Protection of Civilians in Peacekeeping Operations
- Brett R. O’Bannon, ‘Monitoring the Frog’ in Africa: Conflict Early Warning with Structural Data
- Lindsey N. Kingston & Saheli Datta, Strengthening the Norms of Global Responsibility: Structural Violence in Relation to Internal Displacement and Statelessness
Thursday, November 29, 2012
The key characteristic of a public good is that it serves the well-being of the public. Today, however, individual well-being is often conditioned not only on the receipt of state public goods, but also on the receipt of global public goods. In part, this is because the rise of globalization has resulted in complex interconnections between states. For this reason, global public goods can bestow benefits on much of the world’s population.
The system of international investment law (IIL) is slowly arising as one type of a global public good. Principally, the system of IIL meets the two characteristics of public goods: non-rivalrous and non-excludable. First, it is non-rival in that use of IIL by one state or one foreign investor does not detract from the system’s utility for other users. Second, with the adoption of over 3,000 international investment agreements (IIA), the system of IIL is becoming less of a club good and more of a system of law whose benefits are non-excludable. The standardization of many of the agreements’ provisions has resulted in commonalties despite the lack of a multilateral agreement and some have even argued that aspects of IIL have reached the status of customary international law. As a result, many of the benefits of IIAs transcend the individual agreements to be available to more than just signatories and their nationals.
In this sense, the system of IIL – the actual standards of protection, the meaning of those standards and the behavioral expectations they entail – has resulted in a type of global public good that benefits the world at large. These benefits include first, the provision of an overarching legal framework that guides foreign direct investment (FDI) activity and enhances its predictability and, second, the creation of a system that ensures that FDI benefits both states and investors alike.
The system of ILL, however, is failing to bestow both of its benefits. First, the system is exhibiting failures in indicators of legitimacy – for example by producing incoherent jurisprudence and using indeterminate rules – thereby limiting the system’s ability to establish an overarching framework for FDI activity. Second, a failure by arbitral tribunals to recognize the role of FDI in promoting a state’s development is hindering its ability to ensure that FDI benefits both investors and states. Viewing the system of ILL through a global public good lens thus highlights the system’s shortcomings, allowing for correction of these issues, and allows the system of ILL to attain the status of global public good that it deserves.
Ortino: The Investment Treaty System as Judicial Review: Some Remarks on its Nature, Scope and Standards
The nature of the emerging investment treaty system has become central in addressing many open questions in international investment law and policy. The current debate, however, seems to revolve around taking side in the clash between granting maximum protection to foreign investors and safeguarding host States’ ability to regulate in the public interest. In order to put forward a methodology capable of properly balancing investment protection and the sovereign right to regulate, the paper suggests conceptualizing the investment treaty system through the lens of judicial review. The paper’s central argument is that the nature of the investment treaty system is (and should be) at its core, the establishment of a transnational legal framework for the control of public decision-making at the domestic level for the immediate benefit of foreign investors. The paper then proceeds with applying the ‘judicial review’ conceptualization to two specific issues dealing with the ‘scope’ and ‘standards’ of review carried out by investment tribunals on the basis of investment treaties. With regard to the scope of review, the paper addresses the issue of amenability to review under investment treaties of situations involving ‘contracts’ between the host State and the foreign investor. With regard to the standards of review, the paper focuses in particular on the issue of the intensity of the review carried out by investment tribunals. The aim here is to show the merits and implications of adopting a judicial review conceptualization to the investment treaty system.
Gut: Counsel Misconduct before the International Criminal Court: Professional Responsibility in International Criminal Defence
This is the first comprehensive study of the law governing professional misconduct by defence lawyers before the International Criminal Court. The ICC's regulatory regime was introduced in response to instances of misconduct experienced by other international and domestic criminal courts. The book first turns to how the ICC's forerunners - the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Special Court for Sierra Leone - coped with misconduct, often resulting in controversy. The book also looks at the approaches that have evolved in Germany and the United States, reflecting the different role of defence lawyers in the civil and common law criminal justice traditions.
The book offers a unique insight into the professional responsibilities of defence lawyers within the various international and national regimes. Offering practical guidance on disciplinary systems and other sanctioning mechanisms, it also explores the inherent tension at the heart of the defence lawyer's role: to ensure the human right to a fair trial we want them to be zealous advocates for their clients; at the same time we ask them to commit themselves as officers of the court.
Brunner & Quintana: The Duty to Consult in the Inter-American System: Legal Standards after Sarayaku
In a world characterised on the one hand by globalised trade and commerce, and on the other by deteriorating judicial services, arbitration has become the dispute resolution mechanism of choice in cross-border commercial transactions. International arbitration not only paves the way for parties to avoid state courts, it also facilitates the transnational enforceability of awards that are far more effective than the enforceability of state court judgments. The major instrument is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) of 10 June 1958, which entered into force one year after. Since then the New York Convention has been ratified by 144 states, including all the important trading nations. For good reason the New York Convention is labelled the Magna Carta of international arbitration. The courts of any contracting state are required “to give effect to an agreement to arbitrate when seized of an action in a matter covered by an arbitration agreement and also to recognize and enforce awards made in other States, subject to specific limited exceptions” (UNCITRAL). The 16 articles of the Convention are dealt with article-by-article, following a clear structure which swiftly guides the reader to the issue that he or she is engaged with.
Wednesday, November 28, 2012
It is a truism that new technologies are remaking the tactical and legal landscape of armed conflict. While such statements are undoubtedly true, it is important to separate genuine trends from scholarly exaggeration. The following Essay, an introduction to the Drone Wars Symposium for the Journal of International Criminal Justice, catalogues today’s most pressing disputes regarding International Humanitarian Law (IHL) and their consequences for criminal responsibility. These include: (i) the triggering and classification of armed conflicts with non-state actors; (ii) the relative scope of IHL and international human rights law (IHRL) in asymmetrical conflicts; (iii) the targeting of suspected terrorists under concept- or status-based classifications that render them subject to lawful attack; (iv) the legal fate of CIA drone operators who participate in armed conflict without the orthodox privilege of combatancy conferred on members of the armed forces; and (v) the principle of proportionality as it applies to drone strikes that produce collateral damage. What emerges from this survey is a portrait of drones as a technological development that has radically escalated pre-existing tensions in IHL that first emerged with manned aerial attacks and artillery. As conflicts with non-state actors proliferate and intensify, these pre-existing tensions will continue to transform, via state practice, the reciprocity usually associated with orthodox IHL.
An international actor is responsible under international law when an act attributable to it causes a breach of an obligation by which it is bound. Sometimes third party actors can share elements of that responsibility. At the one end of the spectrum, a third party can fully share the responsibility of the primary party. More modestly, the acts of a third party can have a bearing on the responsibility of the primary party without this necessarily impacting on its own responsibility. There are two main ways in which this can happen: the first is when the same act is attributable both to the primary party and to the third party; the second is when the act of the primary party and a different act of the third party together cause the breach of the obligation of the primary party. This article looks at how, thus defined, third parties sharing elements of responsibility with a primary actor are taken into account in WTO dispute settlement proceedings.
- Russell Buchan & Nicholas Tsagourias, The Application of Public International Law to the Crisis in Libya
- Liliana L. Jubilut, Has the `Responsibility to Protect' Been a Real Change in Humanitarian Intervention? An Analysis from the Crisis in Libya
- David Berman & Christopher Michaelsen, Intervention in Libya: Another Nail in the Coffin for the Responsibility-to-Protect?
- Constantine Antonopoulos, “The Legitimacy to Legitimise“: The Security Council Action in Libya under Resolution 1973 (2011)
- Anne Schuit, Recognition of Governments in International Law and the Recent Conflict in Libya
- Kubo Mačák & Noam Zamir, The Applicability of International Humanitarian Law to the Conflict in Libya
Newton: Community Based Accountability in Afghanistan: Recommendations to Balance the Interests of Justice
This chapter examines the advisable scope of ICC authority in contrast to the traditional dispute mechanisms encountered in Afghanistan [in the context of a weak central authority facing resurgent Taliban influences]. Theoretical constructs of jus post bellum are most challenged by the realities of a complex choreography of authoritative local actors capable of administering justice/reconciliation grounded in sociological legitimacy, national officials, and the supranational jurisdiction of the ICC. From the perspective of victims and community leaders, the external interference of the ICC is in itself a controversial and complex aspect of “justice.” The balance between prosecutions, reintegration of particular perpetrators, forgiveness, reparations, truth-telling, and apology is a delicate process because the fundamental nature of the social contract between the individual and the state is in flux, just as the nature of the relationship between the state and the supranational Court is evolving. To ameliorate what will be a recurring problem as it begins its second decade of operation, the ICC needs to develop a consistent and analytically defensible framework for understanding community based processes in light of the “interests of justice” analysis permitted by the Rome Statute. Conversely, Afghanistan needs to implement a statutory scheme that streamlines the manner in which disputes are brought into the formalized justice system or addressed in informal community based mechanisms. This chapter closes with a recommended statutory scheme that would preserve the legitimacy and availability of community based mechanisms while preserving the ability of formalized domestic or international prosecutions when localized settlements would undermine domestic statutes, human rights norms, or offend the interests of justice.
- Michael W. Doyle, Dialectics of a global constitution: The struggle over the UN Charter
- Vivienne Jabri, Cosmopolitan politics, security, political subjectivity
- Martin Shaw, From comparative to international genocide studies: The international production of genocide in 20th-century Europe
- Ulrich Franke & Ralph Weber, At the Papini hotel: On pragmatism in the study of international relations
- Karen Lund Petersen, Risk analysis – A field within security studies?
- Diana Panke & Ulrich Petersohn, Why international norms disappear sometimes
- Harriet Bulkeley & Heike Schroeder, Beyond state/non-state divides: Global cities and the governing of climate change
Tuesday, November 27, 2012
This paper surveys and evaluates the contribution of the International Court of Justice to the development of the (public international) law of the sea. It does so by comparing the Court's contribution as against other 'competing' agents of development of international law, ie other adjudicators, codifiers, regulators, and lawmakers. It concludes that the impact of the Court on the law of the sea has not been great, and is now diminishing. However, it argues that the more important contribution of the Court lies less in its influence on the development of the law, and more in its authority in consolidating it.
This chapter elaborates on the spatial dimension of treaties - their operation in, and with regard to territory. It attempts to unpack the several overlapping concepts that can hide behind deceptively simple terms such as the territorial application or scope of treaties. It examines, inter alia, Article 29 of the Vienna Convention on the Law of Treaties, territorial application in the sense of the physical location in which a state's party's obligations are to be performed, territorial application in the different sense of a treaty's binding effect with regard to a state's territorial sub-divisions, as well as the dedicated treaty clauses, reservations and unilateral declarations used by states to vary the territorial scope of application of treaties.
- Peter C. Hansen, The World Bank Administrative Tribunals External Sources of Law: The Next Chapter (2006-2010) (Part II)
- Enrico Milano, The Investment Arbitration between Italy and Cuba: The Application of Customary International Law under Scrutiny
- Lorenza Mola, Sovereign Immunity, Insolvent States and Private Bondholders: Recent National and International Case Law
- Yoshifumi Tanaka, Note on the Interim Measures in the Indus Waters Kishenganga Arbitration
Monday, November 26, 2012
Workshop: Varieties of Subsidiarity: Deference and Defiance in the Construction of Global Public Authority
Markus Jachtenfuchs and Nico Krisch (Hertie School of Governance)
SUBSIDIARITY IN GLOBAL HEALTH GOVERNANCE
Comments: Michael Zürn (Social Science Research Center Berlin)
Anna Holzscheiter (FU Berlin): Contested Subsidiarity in Global Health Governance: Fragmented spheres of authority and their effects on health systems in developing countries
Sharifah Sekalala and Monica Kirya (University of Warwick): Subsidiarity in Global Health Governance: “Two publics” and Defiance in the Global Fund’s operations in Uganda
SUBSIDIARITY AND INTERVENTION
Comments: Nico Krisch (Hertie School of Governance)
Anja Jetschke and Bernd Schlipphak (Göttingen University): Between UN- and Un-Mandated Interventions: Regional Organizations and Military Intervention
THE CHALLENGE OF HORIZONTAL AUTHORITY
Comments: Antje Wiener (University of Hamburg)
Tonya Putnam (Columbia University): Extraterritoriality and Subsidiarity: An American Mode of Global Governance Through Domestic Courts?
IMPLICATIONS OF GEOPOLITICAL CHANGE
Comments: Markus Jachtenfuchs (Hertie School of Governance)
Jacob Katz Cogan (University of Cincinnati): The BRICS and the Scope of International Law
SUBSIDIARITY IN INTERNATIONAL HUMAN RIGHTS REGIMES
Comments: Joseph Weiler (NYU Law School)
Michael Freitas Mohallem (UC London): The redundancy of subsidiarity? The rise of constitutional courts as the locus for international law decision-making: the case of South America
Ruti Teitel (NYU Law School): Changing Understandings of Subsidiarity in Contemporary Regional Human Rights Systems
COURTS AS AGENTS OF SUBSIDIARITY
Comments: Nico Krisch (Hertie School of Governance)
Robert Howse (NYU Law School): Subsidiarity and the Judicialization of Global Economic Governance
Steven Wheatley (University of Lancaster): Prisoner Voting after Hirst (No.2): Subsidiarity, the margin of appreciation, and the normative authority of international human rights courts and tribunals
THE PROMISE AND PITFALLS OF SUBSIDIARITY
Roundtable with two interventions
Joseph Weiler (NYU Law School)
Michael Zürn (Social Science Research Center Berlin)
Sunday, November 25, 2012
- Research Articles
- Justin Yifu Lin, From Flying Geese To Leading Dragons: New Opportunities and Strategies for Structural Transformation in Developing Countries
- Tamara Lothian, Beyond macroprudential regulation: Three ways of thinking about financial crisis, regulation and reform (pages 410–420)
- Steven J. Hoffman, Mitigating Inequalities of Influence among States in Global Decision Making (pages 421–432)
- Rob Hope, Tim Foster, Alex Money & Michael Rouse, Harnessing mobile communications innovations for water security (pages 433–442)
- Sebastiano Maffettone, Global Justice: Between Leviathan and Cosmopolis
- Special Section - International Law, Human Rights, and the Global Economy: Innovations and Expectations for the 21st Century
- Margot E. Salomon, The Future of Human Rights
- Margot E. Salomon & Ian Seiderman, Human Rights Norms for a Globalized World: The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights
- Muthucumaraswamy Sornarajah, A Justice-Based Regime for Foreign Investment Protection and the Counsel of the Osgoode Hall Statement
- Mary Dowell-Jones, International Finance and Human Rights: Scope for a Mutually Beneficial Relationship
- Alexia Herwig, WTO Non-Violation or Situation Complaints: A Remedy for Extraterritorial Effects on the Human Right to an Adequate Standard of Living
- Gorik Ooms & Rachel Hammonds, Global Governance of Health and the Requirements of Human Rights
- Olivier De Schutter, Reshaping Global Governance: The Case of the Right to Food
- Christian Courtis, The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A New Instrument to Address Human Rights Violations
- Martin Scheinin, International Organizations and Transnational Corporations at a World Court of Human Rights
- Survey Articles
- Claire A. Auplat, The Challenges of Nanotechnology Policy Making PART 1. Discussing Mandatory Frameworks
- Kevin P. Gallagher & Elen Shrestha, The Social Cost of Self-Insurance: Financial Crisis, Reserve Accumulation, and Developing Countries
- Practitioner Commentaries
- Julia De Clerck-Sachsse, The EU’s Strategic Partnerships – Why the Time to Act is Now
- Kenneth Roth, Seeking Allies Worldwide to Carry the Human Rights Banner
- Response to Article
- Alex David Rogers & Karen Sack, Not Seeing the Wood for the Trees