The General Assembly has accorded to Palestine the status of a non-member observer state in the UN. Some commentators have taken the position that Palestine's legal status as a state has thus been confirmed. This article draws on historical examples to demonstrate that the status of non-member state is not necessarily granted only to states. The recent vote in the General Assembly, therefore, neither confirmed nor altered the legal status of Palestine. But irrespective of this vote, Palestine nevertheless has a previously-acquired international capacity to act like a state and can, inter alia, become a party to the ICC Statute and bring a case to the ICJ. Such a capacity could be seen as an implicit confirmation of statehood. This article, however, demonstrates that state creation cannot be an implicit side-effect of international treaties or voting procedures in international organizations. Not even (full) membership of the UN is an exception.
Saturday, April 6, 2013
- Ernst-Ulrich Petersmann, Human Rights and International Economic Law
- Mavluda Sattorova, Investment Treaty Breach as Internationally Proscribed Conduct: Shifting Scope, Evolving Objectives, Recalibrated Remedies?
- Surendra Bhandari, Doha Round Negotiations: Problems, Potential Outcomes and Possible Implications
- Notes and Comments
- Daniel Gervais, Challenges in Intellectual Property Governance: Providing the Right Incentives in the Quest for Global Innovation
- Mitsuo Matsushita, A Note on the Appellate Body Report in the Chinese Minerals Export Restrictions Case
- Felicity Hammond, A Balancing Act: Using WTO Dispute Settlement to Resolve Regional Trade Agreement Disputes
Friday, April 5, 2013
These remarks, delivered at the April 4, 2013, luncheon of the American Society of International Law Women in International Law Interest Group, reflects on contributions of Jane Addams and other members of the early 20th C. peace movement as a means to explore law and practice related to the contemporary use of force and armed conflict.
Thursday, April 4, 2013
This is the introductory chapter of my forthcoming book with the same title. International relations have long been considered outside of the domain of law. Most people presume that law is only meaningful when backed by a central enforcer. By this logic, absent a world state international law cannot meaningfully exist. International law is rising in political relevance because since the end of the Cold War, international politics has become increasingly judicialized. Domestic actors increasingly see the rule of law as requiring respect for international law; domestic and international actors are increasingly invoking international law as they advocate for and justify policy prescriptions; and international courts, ad hoc international legal mechanisms, and domestic judges are increasingly adjudicating state respect for international law. The New Terrain of International Law charts the changes and trends in judicializing international relations by focusing on the creation and use of international courts (ICs). Today there are more than two-dozen international courts that have collectively issued over 37,000 binding legal rulings in individual contentious cases. The contribution of the courts, international or otherwise, is to say what the law requires, and to perhaps specify remedies for law violations. The New Terrain of International Law explains how this very limited power — the power to speak the law — translates into political influence, and it explains when and how delegating authority to international courts influences international and domestic politics. This working paper includes an extended table of contents and a case study index.
Wednesday, April 3, 2013
How do international commitments shape domestic policy? We argue that trade agreements affect how governments manage global market risk. Previous research argues that governments use social insurance to mitigate economic uncertainty. We argue that governments can manage uncertainty by using preferential trade agreements (PTAs) to reduce volatility. Our formal model shows that economic volatility increases the provision of social insurance by an office-seeking government; but as a government joins more PTAs, it will provide less social insurance. Our empirical tests show that: (1) PTAs reduce volatility in the terms of trade, (2) volatility increases social insurance, and (3) PTAs reduce social insurance. We conclude that trade agreements have, to date, understudied and important consequences for domestic policy.
Njikam: The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law
The Special Court marked a new approach by the international community to violations of international humanitarian law. Its mode of creation i.e. through an agreement between the UN and the Government of Sierra Leone – as compared to the UN ad hoc Tribunals that were established pursuant to Chapter VII of the UN Charter was a particularity of the Court. It is the only international court that possesses concurrent, primary and complimentary jurisdiction. The objective of this thesis is to provide a comprehensive analysis of the contribution of the Special Court to the development of international humanitarian law. Similar to its predecessors (ad hoc Tribunals), the Special Court consolidated the principle under international law of individual criminal responsibility. The author evaluates the Special Court's mandate to »prosecute those who ›bear the greatest responsibility‹ as being in itself a contribution to the development of international humanitarian law since the ICTY and ICTR at the time of their inception did not have this limitation rationae personae / prosecutorial discretion.« The author assesses some of the interesting and challenging issues dealt with such as the recruitment of child soldiers, amnesty for international crimes, head of state immunity and the crime of forced marriage. The author concludes that the Special Court contributed albeit to a limited extent to the development of international humanitarian law.
Conference: Structural Challenges Facing International Organizations: Re-Assessing the League of Nations
The introductory paper to a symposium issue of the Leiden Journal of International Law, edited by the authors, dealing with the function of domestic courts as agents for the development of international law. The paper "sets the scene" for the contributions to the symposium, which seek to trace the impact of domestic courts in the development of canonical areas of international law, such as jurisdiction, immunity, state responsibility, the law of international organizations/human rights, and the law of armed conflict/conduct of hostilities. It discusses the formal quality and actual influence of domestic court decisions on the development of international law, and introduces the concept of "agents" of international law development. This is the analytical perspective that the contributions to the symposium adopt.
As in the past, this year's WTO Conference will explore emerging ideas and developments in international trade law. Panels on Day 1 will address (a) Energy and Trade; (b) Economic Analysis in WTO Law; (c) Dispute Settlement Procedure; and (d) Digital Trade. Panels on Day 2 will address (a) Financial Crises and Sovereign Debt Crises; (b) International Finance and International Trade; (c) The Emergence of the TBT Agreement; and (d) Post-Doha: Where Do We Go Now?
Tuesday, April 2, 2013
- Mohamed Elewa Badar & Iryna Marchuk, A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World (England, United States, Germany, France, Denmark, Russia, China, and Islamic legal tradition)
- Emily Haslam & Rod Edmunds, Managing a New ‘Partnership’
- Manuel Ladiges, Criminal Liability of Directors of a Private Limited Company Seated in Germany
- Marko Divac Öberg, Processing Evidence and Drafting Judgments in International Criminal Trial Chambers
The law has consistently lagged behind technological developments. This is particularly true in armed conflict, where the 1907 Hague Conventions and the 1949 Geneva Conventions form the basis for regulating emerging technologies in the 21st century. However, the law of armed conflict, or LOAC, serves an important signaling function to states about the development of new weapons. As advancing technology opens the possibility of not only new developments in weapons, but also new genres of weapons, nations will look to the LOAC for guidance on how to manage these new technological advances.
Because many of these technologies are in the very early stages of development or conception, the international community is at a point in time where we can see into the future of armed conflict and discern some obvious points where future technologies and developments are going to stress the current LOAC. While the current LOAC will be sufficient to regulate the majority of future conflicts, we must respond to these discernible issues by anticipating how to evolve the LOAC in an effort to bring these future weapons under control of the law, rather than have them used with devastating effect before the lagging law can react.
This paper analyzes potential future advances in weapons and tactics and highlights the LOAC principles that will struggle to apply as currently understood. The paper will then suggest potential evolutions of the LOAC to ensure it continuing efficacy in future armed conflicts.
Boschiero et al.: International Courts and the Development of International Law: Essays in Honour of Tullio Treves
This book contains a collection of essays by leading experts linked to the outstanding characteristics of the scholar in honour of whom it is published, Tullio Treves, who combines his academic background with his practical experiences of a negotiator of international treaties and a judge of an international tribunal. It covers international public and private law related to international courts and the development of international law.
Under Article 38 of its Statute, the International Court of Justice can apply judicial decisions only as a “subsidiary means for the determination of rules of law”. However, there are many reasons to believe that international courts and tribunals do play quite an important role in the progressive development of international law. There are a number of decisions which are inevitably recalled as the first step, or a decisive step, in the process of the formation of a new rule of customary international law. In these cases, can the judge be considered as a subsidiary of others? Are these cases compatible with the common belief that a judge cannot create law? Is this a peculiarity of international law, which is characterized by the existence of several courts but the lack of a legislator? Do decisions by different courts lead to the consequence of a fragmented international law? This volume provides the reader with an elaboration of various questions linked to the legislative role of courts.
In their choices of subjects, some contributors have taken into account the general aspects of the development of international rules through court decisions or specific sectors of international law, such as human rights, international crimes, international economic law, environmental law and the law of the sea. Others have chosen the subject of the rules on jurisdiction and procedure of international courts. The question of the courts’ role in the development of areas of law different from public international law, namely private international law and European Union law, has also been considered.
I examine the impact of depth and rigidity in international trade agreements. Increasing the depth of required cooperation lowers the likelihood of full compliance and the stability of a trade regime. In contrast, increasing the rigidity of an agreement raises the likelihood of full compliance and lowers stability. Both depth and rigidity can lower tariffs if a state does not defect from its treaty obligations. I argue that if we control for the benefits of trade liberalization, then observable treaties will have a negative relationship between depth and rigidity. Deep agreements will be flexible, while shallow agreements will be rigid.
Written by one of the world's leading international lawyers, this is a landmark publication in the teaching of international law. International law can be defined as 'the rules governing the legal relationship between nations and states', but in reality it is much more complex, with political, diplomatic and socio-economic factors shaping the law and its application. This refreshingly clear, concise textbook encourages students to view international law as a dynamic system of organizing the world. Bringing international law back to its first principles, the book is organised around four questions: where does it come from? To whom does it apply? How does it resolve conflict? What does it say? Building on these questions with both academic rigour and clarity of expression, Professor Klabbers breathes life and energy into the subject. Footnotes point students to the wider academic debate while chapter introductions and final remarks reinforce learning.
Monday, April 1, 2013
Despite the centrality of energy to global and national politics, international energy governance remains one of the most fragmented areas of international cooperation. In this paper I address three question: Why is international energy governance so fragmented? Why is that fragmentation a problem? And what should we do about it? In brief, energy governance is fragmented between economic energy institutions — such as the International Energy Agency, the Organization of Petroleum Exporting States, and the Energy Charter Treaty — and environmental energy institutions such as the United Nations Framework Convention on Climate Change (UNFCCC). This fragmentation, due in part to path dependence, is problematic because it creates a situation in which the policies adopted in one institution can undermine the effectiveness of policies adopted in another institution. The UNFCCC, for example, aims to create incentives for an economy-wide shift to low-carbon fuels by making low-carbon fuels cheaper relative to high-carbon fuels. Yet economic energy institutions often have the opposite objective and/or effect. The IEA and OPEC both adopt measures aimed at keeping oil competitive with low-carbon substitute fuels, thereby deterring the fuel-switching encouraged by the UNFCCC. Moreover, because economic energy institutions often set policy for only a single type of fuel (such as oil or natural gas), they greatly increase the transaction costs to bargaining over a comprehensive energy production or consumption policy. To reduce the costs of this fragmentation, I make two suggestions. First, the role of the International Energy Forum in coordinating the policies of other intergovernmental energy institutions should be amplified. Second, energy governance should in some cases be further fragmented to de-emphasize linkages that prompt political backlash during negotiations.
The case study of investment treaty arbitration provides an opportunity to examine whether and how the invocation of responsibility by a non-state actor has affected secondary rules of state responsibility. This article takes the analytical perspective of investors, capable of being perceived as right-holders (by reference to human and consular rights), beneficiaries (by reference to the law of treaties rules on third states), or agents (by reference to diplomatic protection). The shift from the state to the investor as the entity invoking responsibility for the breach of investment treaties seems to have influenced the law of state responsibility in a number of distinct ways. The apparent disagreement about the law of state responsibility may sometimes properly relate to questions of treaty interpretation, while in other cases rules from an inter-state context are applied verbatim. In other cases, the different perspectives lead to importantly different conclusions regarding circumstances precluding wrongfulness, elements of remedies, waiver of rights, and, possibly, interpretative relevance of diplomatic protection rules. The overall thesis is that conceptual challenges faced by investment arbitration may be illuminated by the solutions provided by the regimes that formed the background for its creation.
Reinisch: The EU on the Investment Path – Quo Vadis Europe? The Future of EU BITs and Other Investment Agreements
Immediately after the entry-into-force of the Lisbon Treaty in December 2009, which inserted FDI into the framework of the existing Common Commercial Policy, the debate focused on the scope of the new investment power and its implications for the practice of EU treaty-making, whether the “new” EU investment power was limited to questions of market access, and whether future EU investment treaties would contain investor-state dispute settlement provisions. Meanwhile the EU Commission has strongly asserted its FDI powers under Article 207(1) TFEU and plans to conclude treaties that cover the entire range of issues currently addressed in EU Member State BITs. In July 2010, the Commission issued a Communication on a European investment policy which has been widely discussed since. This article will discuss the potential shape of future EU investment treaties as far it can be already discerned and it will also address the power struggle between the Member States and the Union.
When does a cyber-attack (or threat of cyber-attack) give rise to a right of self-defense – including armed self-defense – and when should it? This essay examines these questions through three lenses: (1) a legal perspective, to examine the range of reasonable interpretations of self-defense rights as applied to cyber-attacks, and the relative merits of interpretations within that range; (2) a strategic perspective, to link a purported right of armed self-defense to long-term policy interests including security and stability; and (3) a political perspective, to consider the situational context in which government decision-makers will face these issues and predictive judgments about the reactions to cyber-crises of influential actors in the international system. It aims to show specifically how development of politics, strategy, and law will likely play out interdependently with respect to this particular threat – cyber-attacks – and to draw some conclusions about legal development in this area based on that analysis.
van Aaken: Smart Flexibility Clauses in International Investment Treaties and Sustainable Development: A Functional View
The discussions about International Investment Law (IIL) are slowly catching up with the discussions about international trade law in two respects: the first is the social science, especially economic, enrichment of the legal discourse, the second is the discussion on fragmentation of international investment law, that is ‘investment and…’ issues. The topic of this book is a fragmentation issue, namely “investment and sustainable development (SD)”. This article addresses this topic in two specific ways: firstly, it draws on diverse economic insights to analyze the problem trying to give meaningful insights to treaty negotiators and interpreters and, secondly, it concentrates on the contribution of flexibility clauses in solving ‘investment and…’ issues by proposing ‘smart’ flexibility clauses.
The big problem to solve for treaty-designers and adjudicators is to separate opportunistic behavior of states from legitimate policies for SD of host states being pursued by them. This article contributes a procedural and substantive check-list to separate opportunistic behavior of states from good faith regulation which, in my view, should be allowed. In other words, the article is about smart flexibility mechanisms.
In order to develop a frame for solving this problem, this article draws on the economic theories of contract theory (as a basic frame) and political economy theory (for fine-tuning) in order to understand when a host state’s behavior has to be sanctioned and when not. It will then take stock of what kind of flexibility clauses exist in IIAs de lege lata in order to ask whether those clauses allow for a systematic distinction between opportunistic behavior and good faith behavior of states. This part highlights methodological and substantive tools which may be used in order to make this distinction easier. The last part concludes with a view on SD and investment treaties.
Sunday, March 31, 2013
- Piet Hein van Kempen, Four Concepts of Security—A Human Rights Perspective
- Maeve McDonagh, The Right to Information in International Human Rights Law
- Ronan McCrea, The Ban on the Veil and European Law
- Janneke Gerards, The Discrimination Grounds of Article 14 of the European Convention on Human Rights
- Recent Developments
- Dominic McGoldrick, The Limits of Freedom of Expression on Facebook and Social Networking Sites: A UK Perspective
- Frederick Cowell, The Death of the Southern African Development Community Tribunal’s Human Rights Jurisdiction
- Benjamin Mason Meier & Lance Gable, US Efforts to Realise the Right to Health through the Patient Protection and Affordable Care Act