The book is designed to provide an overview of the development, meaning, and nature of international refugee law. The jurisprudence on the status of refugees, loss and denial of the refugees status, non-refoulement, asylum, problems and challenges of refugee protection, the law of return and the right of return, critical refugees and immigration law, and the role of international organizations in protection of refugees are revisited in the context of contemporary realities. The relationship between armed conflict, climate change, and human right violations induced refugees and the existing international refugee regime emerging will be succinctly highlighted and analysed in the book. This lucidly written and timely book will be immensely helpful to anyone grappling with the demonstrated inadequacies of international refugee law in real life situations today and desirous of the reorientation of its meaning and scope to cater for the changing needs and shared expectation of the international community in the 21st century.
Saturday, July 6, 2013
Friday, July 5, 2013
- Volume 357
- J. Dugard, The Secession of States and Their Recognition in the wake of Kosovo
- L. Gannagé, Les méthodes du droit international privé à l’épreuve des conflits de cultures
- Volume 359
- D. Opertti Badán, Conflit de lois et droit uniforme dans le droit international privé contemporain: dilemme ou convergence? (conférence inaugurale)
- Chen Weizuo, La nouvelle codification du droit international privé chinois
- Christian Kohler, L’autonomie de la volonté en droit international privé: un principe universel entre libéralisme et étatisme
- Volume 360
- Jürgen Basedow, The Law of Open Societies — Private Ordering and Public Regulation of International Relations. General Course on Private International Law
- David Kellen, Zvi Bekerman, & Ifat Maoz, An Easy Coalition: The Peacecamp Identity and Israeli–Palestinian Track Two Diplomacy
- Gerald Eisenkopf & André Bächtiger, Mediation and Conflict Prevention
- Michael J. Gilligan, Eric N. Mvukiyehe, & Cyrus Samii, Reintegrating Rebels into Civilian Life: Quasi-Experimental Evidence from Burundi
- Ben D’Exelle & Arno Riedl, Resource Allocations and Disapproval Voting in Unequal Groups
- Barbara Koremenos, The Continent of International Law
- Ryan S. Jablonski & Steven Oliver, The Political Economy of Plunder: Economic Opportunity and Modern Piracy
- Anna Getmansky, You Can’t Win If You Don’t Fight: The Role of Regime Type in Counterinsurgency Outbreaks and Outcomes
Sharp: Beyond the 'Toolbox': Addressing Dilemmas of the Global and the Local in Transitional Justice
The importance of "the local" (local ownership, local values, local practices, etc.) in matters of post-conflict peacebuilding and transitional justice has become an increasingly common trope in academic and policy discourse. Yet despite its centrality, concepts like "local ownership' remain vague and poorly understood, often being associated more with aspirational rhetoric than concrete policy reality. Examined more deeply, the seeming consensus about the importance of the local in transitional justice masks a profound ambivalence arising out of a clash of normative commitments: between a commitment to liberal internationalism and international human rights on the one hand, and to principles of local sovereignty, autonomy, and democracy on the other. Striking a better balance between these commitments represents one of the key policy challenges of 21st century transitional justice. To this end, this article seeks to analyze and deconstruct the concept of the local in the transitional justice context, exploring its promises and pitfalls. In particular, I argue that understanding global-local dilemmas requires one to unpack the concept of local ownership, distinguishing concerns about actual control (agency, decision making, funding), process (bottom-up, participatory, homegrown), and substance (values, practices, priorities), even if those concerns are in practice highly related. Deconstruction of the concept of the local, in turn, tends to destabilize, breaking down simple binary notions of global and local. Going forward, achieving a better global-local balance along the multiple dimensions of local ownership may help to generate new and innovative approaches that take us beyond the increasingly rote transitional justice "toolbox."
- Ignacio Basombrío, Zender, Perú y Chile: La Haya y el futuro de las relaciones
- Óscar Maúrtua de Romaña, Las Líneas de base en el derecho del mar y el derecho internacional de la delimitación marítima
- Lamberto Zannier, An Assessment of the Potential and Perspectives of the Organization for Security and Cooperation in Europe
- Awn Al-Khasawneh, Reflections on the Efficiency of the International Criminal Court
- Ion Diaconu, Twenty Years since the Adoption of the European Charter for Regional or Minority Languages
- Eduard Serbenco, Bargaining in the “Shadow” of Arbitration: When Mediation Settlements become Enforceable Arbitral Awards
- Liviu Dumitru, The Judgment of the International Tribunal for the Law of the Sea in the case Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal
- Andra Alexandru, The Role of Meditation in Settling Protracted Conflicts. Case Study: The Transnistrian Conflict
- Stelian Obiziuc, Constantin I. Koradja (1889-1950) – o pagină de aur în istroia diplomaţiei româneşti
Thursday, July 4, 2013
- Special Issue: Borders, Security and (Global) Governance
- Catarina Kinnvall, Borders, Security and (Global) Governance: An Introduction to the Special Issue
- Chris Perkins & Chris Rumford, The Politics of (Un)fixity and the Vernacularisation of Borders
- Ted Svensson, At the Threshold of Order: Responses to the Mumbai Attacks
- Richard Ned Lebow, Internal Borders: Identity and Ethics
- Annika Bergman Rosamond, Protection beyond Borders: Gender Cosmopolitanism and Co-constitutive Obligation
- Catarina Kinnvall & Paul Nesbitt-Larking, Securitising Citizenship: (B)ordering Practices and Strategies of Resistance
- Owen Parker & David Toke, The Politics of a Multi-level Citizenship: French Republicanism, Roma Mobility and the EU
- Sara Kalm, Diaspora Strategies as Technologies of Citizenship
- Ian Manners, European [Security] Union: Bordering and Governing a Secure Europe in a Better World?
- Symposium: Reviewing the Reviewers: The Committee on Foreign Investment in the United States (CFIUS) and the Ralls Case
- Jeremy Zucker & Hrishikesh Hari, Gone With the Wind: The Ralls Transaction and Implications for Foreign Investment in the United States
- Daniel B. Pickard, Nova J. Daly, & Usha Neelakantan, The Ralls Case: Why CFIUS and the Court Got It Right
- David N. Fagan, Mark E. Plotkin, Jonathan R. Wakely, & The Ralls Case: Lessons for Foreign Investors
- Edwin Vermulst & Juhi Sud, Modernization of the EU’s Trade Defence Instruments and the Law of Unintended Consequences
- Darrel Pearson & Laura Murray, The Landmark Decision in Jockey Canada Company v. President of Canada Border Services Agency: Lessons for Compliance with Canadian Customs Valuation Requirements
- Laura Carola Beretta, Reforming the EU GSP in Europe: Defining the New Map of Tariff Preferences and Supply Options
- John P. Donohue, United States v. Izurieta: Searching the Judicial Rolls to Get It Right
- Giovanna M. Cinelli & Kenneth J. Nunnenkamp, Challenging Export Enforcement Actions: Policies of Denial under the International Traffic in Arms Regulations
- Sharmila Mary Joseph, Patients versus Patents: The Indian Supreme Court’s Decision in the Novartis Case
- Jonathan S. Kallmer, Not Your Father’s Trade Agenda: The Evolving Priorities of International Trade and Investment Negotiations
Zu einem Konflikt zwischen Investitions- und Umweltschutz kommt es, wenn eine von einem Investitionsschutzinstrument geschützte Investition durch eine Maßnahme enteignet wird, die Zielen des Umweltschutzes dient. Häufig haben sich Staaten auf völkerrechtlicher Ebene beiden Zielen verpflichtet, sodass sich die Vorrangfrage stellt. Letztlich geht es im Kern darum, wer für die Kosten einer Enteignung aus umweltschützenden Gründen einstehen muss: der Investor, von dessen Investition möglicherweise umweltschädigende Wirkungen ausgehen, oder die Allgemeinheit im Gaststaat, der den Ausländer enteignet. Die Arbeit geht dieser Fragestellung nach, untersucht die bestehenden völkerrechtlichen Instrumente, analysiert die schiedsgerichtliche Praxis und zeigt einen Lösungsweg auf.
- Eyal Benvenisti, Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders
- Leila Nadya Sadat, Crimes Against Humanity in the Modern Age
- Notes and Comments
- Lori Fisler Damrosch & Bernard H. Oxman, Editors’ Note
- Michael J. Glennon, Law, Power, and Principles
- Mary Ellen O’Connell, Dangerous Departures
- Gabor Rona & Raha Wala, No Thank You to a Radical Rewrite of the Jus ad Bellum
- Elizabeth Wilmshurst & Michael Wood, Self-Defense Against Nonstate Actors: Reﬂections on the “Bethlehem Principles”
Bettauer: Tribunal Establishes Initial Procedures for Review of Mass Bondholder Claims against Argentina
Wednesday, July 3, 2013
- Application of the Doctrine of Forum Non Conveniens in Summary Proceedings for the Recognition and Enforcement of Awards Governed by the New York and Panama Conventions: Report of the International Arbitration Club of New York
- Giorgio Bernini, The Parties’ Right to Choose Their Arbitrator and the Prohibition Against Discrimination: An Unstable Balance. A Comment on the Judgments in Jivraj v. Hashwani
- Tyler B. Robinson, The Recognition and Enforcement of Foreign Arbitral Awards as Foreign Judgments in the United States
- Thomas E. Carbonneau, The Fifth Circuit Assesses Stolt-Nielsen
- Leonardo de Campos Melo, Recognition of Foreign Arbitral Awards in Brazil
- 25th Anniversary of the Dallas Workshop Institute for Transnational Arbitration: "The Best of the Best"
- R. Doak Bishop, Introduction
- 2000 - Stephen M. Schwebel, The Docket and Decision-Making Process of the International Court of Justice
- 2001 - W. Michael Reisman, International Arbitration and Sovereignty
- 2002 - David D. Caron, The World of Intellectual Property and the Decision to Arbitrate
- 2002 - Charles N. Brower, Charles H. Brower II, & Jeremy K. Sharpe, The Coming Crisis in the Global Adjudication System
- 2003 - Jan Paulsson, Waiting for Loewen
- 2004 - Gabrielle Kaufmann-Kohler, The Arbitrator and the Law: Does He/She Know It? Apply It? How? And a Few More Questions
- 2005 - Gerald Asken, Reflections of an International Arbitrator
- 2006 - James Castello, Interim Measures Under Uncitral's Model Law New Proposals
- 2006 - V.V. Veeder, Why Bother and Why It Matters?
- 2007 - James A. Baker, III, Developing Successful Negotiating Skills
- 2008 - William W. Park, Framing the Case on Quantum
- 2008 - Lucy F. Reed, Damages In International Arbitration: Less Is More, More or Less
- 2009 - Carla Powers Herron, Whose Arbitration Is It Anyway? A Corporate Perspective on the Duties of Counsel and Arbitral Tribunal
- 2009 - William W. Park, Arbitration Integrity: The Transient and the Permanent
- 2009 - Donald Francis Donovan, The International Arbitrator as a Transnational Judge
- 2010 – Jan Paulsson, Moral Hazard in International Dispute Resolution
- 2011 – Toby Landau, Advocacy in International Arbitration
- 2012 – R. Doak Bishop, The Quality of Arbitral Decision-Making and Justification
- 2013 – Gary Born, with Linda J. Silberman, A Conversation with Gary Born
Calls for the International Court of Justice to be more ready to seek the advice of independent scientific experts under Article 50 of the Court’s Statute are gaining momentum following the Court’s judgment in the Case Concerning Pulp Mills (Argentina v. Uruguay). The two cases Whaling in the Antarctic (Australia v. Japan) and Aerial Herbicide Spraying (Ecuador v. Colombia) will provide a lightning rod for determining the Court’s interest in seeking external expert scientific opinion. In each of these cases, the Court may need to take a view on matters to which scientific opinion is essential. The Court will need to ensure it has the capacity to achieve the sufficiently reliable insights into the science necessary for a sound resolution of both disputes, taking into account also the interests of the wider international community. Should the Court decide to make use of Article 50, the procedures employed should be designed in ways that will strengthen and enhance the international constituency’s confidence in the Court as well as producing judgments acceptable to disputing parties. The Court is recommended to consider adopting an interactive process relying on the consultation of experts in an individual capacity rather than as group.
The recent Decision on Jurisdiction in Quiborax v. Bolivia represents the latest effort by international investment tribunals to find middle ground on the definition of “investment." This Comment criticizes Quiborax on two interrelated grounds. The first criticism is methodological: the Tribunal failed to account for historical evidence from the drafting of the ICSID Convention, as required by Article 31(4) of the Vienna Convention on the Law of Treaties (“VCLT”). Second, because of this methodological error, the Tribunal adopted the wrong substantive definition of “investment” under Article 25 of the ICSID Convention. Article 25 should properly be understood to reach any plausibly economic activity or asset, but Quiborax adopted a much narrower test that allows tribunals to set aside state decisions about the scope of investment protections. Quiborax reached the right result in allowing the case to proceed. But it exemplifies a troubling tendency for an insufficiently reflective reliance on precedent to swamp the principles of treaty interpretation.
Tuesday, July 2, 2013
- Yann-huei Song, Survey of Declarations or Statements Made by the Parties to the Law of the Sea Convention: 30 Years after Adoption
- Olya Gayazova, China’s Rights in the Marine Arctic
- Yoshinobu Takei, Assessing Flag State Performance in Legal Terms: Clarifications of the Margin of Discretion
- Quentin Hanich & Yoshitaka Ota, Moving Beyond Rights-Based Management: A Transparent Approach to Distributing the Conservation Burden and Benefit in Tuna Fisheries
Pavoni: Public Interest Environmental Litigation and the European Court of Human Rights: No Love at First Sight
This paper considers the doctrines and principles that are available to the ECtHR in order to dismiss in limine those environmental claims that are regarded as brought in the name of the public interest or common good as such. Such principles emerge, in particular, from the victim requirement and associated prohibition of actio popularis under the ECHR system and from the tests of applicability of ECHR provisions as developed in the Court’s jurisprudence. The analysis focuses on the Court’s environmental decisions relating to the right to private life under Article 8 ECHR and the right to a fair trial under Article 6 ECHR. These are indeed the provisions which have generated the largest body of environmental jurisprudence and which provide the most interesting insights into the past, present and future of ECHR environmental litigation with a public interest/collective dimension.
Moreover, the study addresses the ECtHR jurisprudence relating to the standing of NGOs, as well as the purpose and scope of procedural environmental rights under the ECHR according to certain innovative, recent decisions of the Court. With a view to showing that the absolute inadmissibility of public interest environmental litigation under the ECHR system is largely a false myth, the paper draws attention to various environmental cases adjudicated by the ECtHR and denoted by a collective dimension, especially given the large number of individuals affected by the alleged ECHR violations and the breadth of the geographical area in question. Such cases show that individualized justice in environmental disputes is somehow fictitious, ie, suggested by the specific requirements of European human rights litigation, but out of tune with the nature of most environmental problems.
It is often asserted that the landmark 1969 Vienna Convention on the Law of Treaties relegates drafting history to a rigidly subsidiary role in treaty interpretation. Many commentators go so far as to suggest that the VCLT entrenches a well-founded prejudice against travaux préparatoires — the paper trail left by negotiations over an evolving text that produces a final treaty. Because of this alleged hostility to history as a source of meaning, the conventional wisdom is that when an interpreter thinks a text is reasonably clear and produces results that are not manifestly unreasonable or absurd, she is supposed to give that prima facie reading preclusive effect over anything the travaux might suggest to the contrary.
This conventional wisdom cannot be reconciled with the agreement that was actually reached in 1969. This Article’s detailed review of the multi-decade process that led to the VCLT reveals that, far from adopting a restrictive view of drafting history, the Vienna Conference sought to secure its role as a regular, central, and indeed crucial component of treaty interpretation. The principal source of modern confusion on this score is that the Vienna delegates rejected a United States proposal to formulate the rules of treaty interpretation as a totality-of-the-circumstances balancing test. But that had nothing to do with hostility to travaux as such, much less with any desire to impose strict threshold requirements on their use. Rather, the delegates were rejecting only what they understood to be Myres McDougal’s view of treaty interpretation as an ab initio reconstruction of whatever wise interpreters might view as good public policy.
In the end, delegates embraced a view of interpretation as a recursive and inelegant process that would spiral in toward the meaning of a treaty, rather than a rigidly linear algorithm tied to a particular hierarchical sequence. Interpreters were thus expected automatically, in any seriously contested case, to assess the historical evidence about the course of discussions, negotiations, and compromises that resulted in the treaty text — in short, to the travaux. The modern view that the VCLT rendered travaux an inferior tool of interpretation is simply wrong.
- Special Issue: Global and European Regulation of Nanotechnologies
- Sekai Ngarize, Karen E. Makuch & Ricardo Pereira, The Case for Regulating Nanotechnologies: International, European and National Perspectives
- Sebastian K. Mielke, Regulating in Thin Air: Nanotechnology Regulation in the European Union
- Estelle Brosset, The Law of the European Union on Nanotechnologies: Comments on a Paradox
- Georg Karlaganis & Rachel Liechti, The Regulatory Framework for Nanomaterials at a Global Level: SAICM and WTO Insights
- Makane Moïse Mbengue & Margaux Charles, International Organizations and Nanotechnologies: The Challenge of Coordination
- Regular Article
- Claudia Cinelli & Katarzyna Pogorzelska, The Current International Legal Setting for the Protection of the Outer Space Environment: The Precautionary Principle Avant La Lettre
- Case Note
- Shibani Ghosh, Access to Information as Ruled by the Indian Environmental Tribunal: Save Mon Region Federation v. Union of India
- Anne Véronique Schlaepfer, Jurisdiction and Admissibility: a Subtle Distinction, Not Always Easy to Make in International Arbitration
- Laura Weiller, The Major Principles of Arbitration Law and their Application in Sports Related Matters
- Anne-Marie Lacoste, The Duty to Raise all Arguments Related to the Same Facts in a Single Proceeding: Can we Avoid a Second Bite at the Cherry in International Arbitration?
- Arnoldo Wald, Ana Gerdau de Borja & Maíra de Melo Vieira, Brazil as “Belle of the Ball”: The Brazilian Courts’ Pro-Arbitration Stance (2011-2012)
- Philippe Pinsolle, Third Party Funding and Security for Costs
Müller: The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law
In The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law, Amrei Müller offers a detailed analysis of the legal consequences of the parallel application of economic, social and cultural (ESC) rights and international humanitarian law (IHL) to non-international armed conflicts. With a focus on health related issues, the book covers important topics like the scope of limitations to and derogations from ESC rights, questions related to the integration of the right to health in military-target decisions, states’ obligations to mitigate the adverse public health impact of armed conflicts and obligations relating to the provision of humanitarian assistance. It moves the discussion about the parallel application of IHL and human rights to a new level, highlighting its potential to enhance the protection of people affected by armed conflicts but also the difficulties involved.
International arbitration has become the favored method of resolving disputes between business partners in almost every aspect of international trade, commerce, and investment. The resolution of a dispute by means of international arbitration provides the parties with an opportunity to resolve their disputes in a private, confidential, cost and time efficient manner before a neutral tribunal of their choice. However, challenges to arbitral jurisdiction have become a common practice in the field. Resolution of such challenges may significantly delay the resolution of the parties’ primary substantive dispute, increase overall dispute resolution costs and even whittle down the benefits of the parties’ bargain to arbitrate. Accordingly, adopting a proper approach to the resolution of such disputes becomes crucial to the efficacy of international arbitration as a system of dispute resolution. The present book provides a comparative analysis of the practice of three carefully selected legal orders: the English, German and Swiss and outlines possible ways forward. As the work strikes a balance between theory and practice, it will appeal to practitioners, researchers, but also students looking to develop their understanding of the international arbitration field.
The People’s Republic of China’s tax policies and international obligations are as multifaceted and dynamic as they are complex, developing closely with the nation’s rise to the world’s fastest-growing major economy. Today, after decades of reform and the entry into the World Trade Organization, China has developed regulatory systems that enable it to provide stable administration, including a tax structure. China’s main tax reform can be attributed to the enactment of the Enterprise Income Tax Law, which came into effect on January 1, 2008. Chinese tax regulations include direct taxes, indirect taxes, other taxes, and custom duties and from a collection point of view, China’s tax administration adopts a very devolved system, with revenue collected and shared between different levels of government in accordance with contracts between the different levels of the tax administration system. With respect to international treaties, China has established a network of bilateral tax treaties and regional free trade agreements. This publication describes in detail China’s complex tax system and policies, as well as major bilateral treaties in which China has entered into using country-by-country analysis.
In Unity in Connectivity? Evolving Human Rights Mechanisms in the ASEAN Region, Vitit Muntarbhorn discusses developments concerning the growth of human rights institutions and processes in the regional space known as the Association of Southeast Asian Nations (ASEAN). Several countries have now set up national human rights commissions. At the regional level, the ASEAN Intergovernmental Commission on Human Rights was established recently. This is complemented by a sectoral body dealing with women’s and children’s rights, and another body dealing with migrant workers. Vitit Muntarbhorn analyses these developments from the angle of key challenges facing the region, the need for more checks and balances, and prospects for more effective protection of human rights.
Monday, July 1, 2013
Call for Papers: The Ethics of War in the 21st Century
Inaugural Conference of the Stockholm Centre for the Ethics of War and Peace
24 – 25 May 2014
Preceded by a public lecture on The Ethics of War and Peace, to be delivered by Prof. Jeff McMahan (Rutgers University) at Stockholm University, May 23rd 2014.
Frances Kamm (Harvard)
Seth Lazar (ANU)
Gustaf Arrhenius (Stockholm)
Cheyney Ryan (Oregon and Oxford)
Christopher Heath Wellman (Washington University in St. Louis)
Special Panel on War and International Law
Adil Ahmad Haque (Rutgers)
François Tenguay-Renaud (Osgoode Hall Law School, York University)
Massimo Renzo (Warwick)
This conference marks the opening of the Stockholm Centre for the Ethics of War and Peace, which is based in the Philosophy Department at Stockholm University. The Centre is funded by the Wallenberg Foundation and directed by Dr. Helen Frowe. The theme of the inaugural conference will be the Ethics of War in the 21st Century, with an emphasis on how just war theory has evolved since 9/11. The conference will be preceded by a public lecture by Professor Jeff McMahan.
It is intended that there be several sessions for submitted papers. Graduate students are especially encouraged to submit. Two graduate bursaries will be available for the best submitted papers by current graduate students. The bursaries will contribute up to 5000 SEK (about $750) towards travel, and cover meals, accommodation and conference registration.
Papers of no more than 5000 words (exc. references), suitable for a 30 minute presentation, should be submitted to firstname.lastname@example.org by the 1st of December 2013. Papers that exceed the word limit will not be accepted. Only electronic submissions will be accepted. Papers should include an abstract of no more than 250 words and be prepared for blind review - please include name, affiliation and contact details in the body of the email. Please also indicate in the submission email whether you would be willing to act as a respondent if your paper is not accepted for the conference. There are plans to put together a journal special issue from selected papers. Please indicate in your email whether you would like your paper considered for publication as part of this issue.
Please note that, excluding graduate bursaries, authors of submitted papers are responsible for all their own expenses.
Suggested paper topics include:
* Theoretical approaches to just war theory, such as cosmopolitanism, reductivism, collectivism, and pacifism
* Humanitarian intervention
* Civil war and arming uprisings
* Weapons and technology
* Terrorism and just war theory
* Legitimate authority
* The moral status of non-state combatants
* War and international law
* Conscientious refusal
* Preventive war, especially with respect to nuclear proliferation
TDM Call for Papers "Reform of Investor-State Dispute Settlement: In Search of A Roadmap"
We are pleased to announce a forthcoming TDM special issue: "Reform of Investor-State Dispute Settlement: In Search of A Roadmap."
Edited by Jean E. Kalicki (Arnold & Porter LLP and Georgetown University Law Center) and Anna Joubin-Bret (Cabinet Joubin-Bret and World Trade Institute), this special issue will explore recent calls for reform of the investor-State dispute settlement (ISDS) system, along with the viability of five "reform paths" recently proposed for discussion by UNCTAD, the United Nations Conference on Trade and Development (see UNCTAD IIA Issues Note, "Reform of Investor-State Dispute Settlement: In Search of a Roadmap," 29-30 May 2013, available here.
Other voices and institutions have made different proposals or offered different approaches towards organizing the debate. This Special Issue is not bound to the structure set out in the UNCTAD Issues Note, but the organizing approach taken by UNCTAD is a useful starting place in search for concrete ways forward.
As use of international arbitration to resolve investor-State disputes has increased exponentially over the past few decades, so too has debate about the current system. The UNCTAD Issues Note, which is the latest of several efforts to spearhead reform, identified several concerns that have been repeatedly discussed in various fora, including complexity of the system of international investment agreements (IIAs) and contradictions between arbitral awards leading to inconsistent interpretation of investment protection standards and unpredictability of outcomes, difficulties in correcting "erroneous" arbitral decisions, and questions about the independence and impartiality of arbitrators and the costs and time of arbitral proceedings, all leading to broader questioning of the legitimacy and adequacy of the ISDS system to current international economic relations.
Following a series of formal and informal conversations with various ISDS stakeholders, the UNCTAD Issues Note identified five broad paths toward reform of the system:
* Promoting alternative dispute resolution;
* Tailoring the existing system through individual IIAs;
* Limiting investor access to ISDS;
* Introducing an appeals facility; and
* Creating a standing international investment court.
Earlier papers and discussions have also identified concrete ways forward in supporting access to ISDS for small and medium enterprises (SMEs), establishing an advisory centre for small economies patterned on the WTO Advisory Centre (see recent UNASUR institution) and better control of third party funding as possible ways forward. Some of the proposals are systemic in nature, i.e., would respond to issues relating to the ISDS system per se, as it is currently established and operating, while others are more technical and procedural and address issues such as repeat appointments in arbitration, party versus institution appointments, how to deal with issues conflict and to address the need for reasoned decisions, the utility of dissenting opinions and the skyrocketing of costs.
The forthcoming TDM Special Issue is intended to encompass the many possible responses to UNCTAD's proposal and other reform efforts, by gathering the views of experienced practitioners, arbitrators, academics, public officials, and policy-makers and advocates on the advantages, disadvantages, and viability of each of the paths that UNCTAD and others have identified to reform the ISDS system (to the extent needed). Possible topics for submission would include exploration of any of UNCTAD's five identified paths forward (listed above), although we also encourage developing other concrete ideas. Topics could include but are not limited to the following:
* Background to the debate: the salient features of the mechanisms that predated the current ISDS system (chiefly national court litigation and diplomatic protection resulting in State-to-State proceedings), and the perceived limitations of those mechanisms, leading to development of alternative models in place today. Has the current system resolved those earlier concerns, while perhaps replacing them with new ones? Are prior systems becoming more attractive than in the past, or is the momentum towards a "new" (third-generation) alternative? Is the current system still adapted to a globalized world economy and financial crisis in industrialized countries?
* Is there room for reexamining the role of domestic courts to settle disputes involving foreign investors and host States? What about the decisions by Australia and several other countries to walk away from international arbitration in investment treaties?
* Defining "legitimacy" in a system with multiple stakeholders: who defines it and how? What are the key parameters, and how should success or failure be measured?
* Has the ISDS system proven its ability to address concerns and criticisms relating to legitimacy and transparency? What about the reforms on transparency undertaken in treaties and by various institutions in the last decade? Have they adequately addressed the perceived transparency deficit?
* The implications of "inconsistent" results in past cases; is there a move towards a jurisprudence constante notwithstanding the absence of binding precedent? What drawbacks might there be to systems that promoted consistency, perhaps at the expense of evolution in jurisprudence and in the absence of unified treaty rules?
* The expanded use of annulment and set-aside to correct "erroneous" awards, and related concerns about the breadth of ICSID annulment procedures; how does this reflect on the concerns of legitimacy and adequacy of the ISDS system?
* Independence and impartiality of arbitrators: are different "rules" or "guidelines" required, or simply different mechanisms for enforcing the ones that exist? Is there a need to broaden the base for choice of arbitrators? Are there some evident criteria for good arbitrators? Is there room for accreditation and specialization?
* Time and cost: what are the main contributing factors? Are the current rules inadequate, or simply their enforcement? Can (and should) dispute resolution be made quicker or cheaper through systemic or institutional changes, or does improvement in time and cost depend inevitably on the efficiency of individual parties, counsel, and arbitrators? Are there downsides to faster/cheaper dispute resolution, given the importance of the stakes in ISDS?
* What are the obstacles to greater use of alternative means of dispute settlement such as mediation and conciliation in ISDS? How will specific rules such as the newly adopted IBA Rules on Investor-State Mediation facilitate access to mediation? How are recent treaties dealing with mediation and other recourse to ADR?
* The "ideal" investment agreement: what are its features, and to what extent are States moving in the direction of such models? Can legal standards and procedures be achieved by "building a better BIT" and gradually phasing it in through new negotiations, given the still unsettled parameters of the MFN doctrine allowing "borrowing" of terms from other (older) BITs that remain in force? Is there a need to revisit or terminate earlier BITs? What needs to be done about BITs and regional investment treaties that are inherently inconsistent?
* Expanding or restricting jurisdiction of the ISDS process. Should the scope of "investment" claims by "investors" be restricted or expanded? Or instead, should the potential for claims or counterclaims by States be reinforced and expanded? And, should private rights of action for international environmental or labor rights claims be introduced, as was proposed by some in connection with the recent U.S. Model BIT review?
* The role of State parties in interpretation of treaty provisions? Should this role be reinforced and if so, do treaties adequately provide for it with non-disputing party interventions? Are arbitral tribunals paying sufficient deference to the interpretation by the parties?
* The "appeals" proposal: why did this not gain traction among States when proposed for discussion during earlier rounds of amendment to the ICSID Rules, in 2006? What is there in regional FTAs and recent treaties that may promote its adoption this time around? Should this effort be conducted at individual treaty levels or is there a need for a broader and inclusive discussion, for example at ICSID? What standards would it apply and who would define them? What are the challenges and issues for implementation?
* A reprised role for States? Diplomatic protection, joint commissions, and State-to-State dispute settlement. Are those options looking better in hindsight? What experience can be gathered from approaches in regions such as Asia or Latin America? What lessons might be drawn from experiences in other contexts (e.g., WTO, MERCOSUR)?
* What are the benefits and drawbacks of a standing international investment court? Why did earlier initiatives fail, and what could be done differently this time around? Is the Inter Arab Investment Court working and could it be replicated? Is there a need for "small claims" settlement courts?
Submissions should be thoughtful and rigorous rather than advocacy pieces - we are not looking to publish tunnel-vision "calls for action" or "calls to defend the castle" by one side or another in the debate. Publication is expected in October or November 2013. Proposals for papers (e.g., abstracts) should be submitted to the editors by 15 September 2013. Please address all proposals to both Jean Kalicki and Anna Joubin-Bret.
Jean E. Kalicki
Arnold & Porter LLP and Georgetown University Law Center
Cabinet Joubin-Bret and World Trade Institute
See contact info here.
 See, e.g., D. Gaukrodger and K. Gordon, Investor-State-Dispute Settlement: A Scoping Paper for the Investment Policy Community, OECD Working Papers on International Investment, N°2012/3; K.P. Sauvant and F. Ortino, Improving the International Investment Law and Policy Regime: Options for the Future, Seminar on Improving the International Investment Regime, Helsinki, 10 - 11 April 2013 (hosted by the Ministry of Foreign Affairs of Finland).
- Scientific Articles
- Cedric Ryngaert, Humanitarian Assistance and the Conundrum of Consent: A Legal Perspective
- Else Bavinck, Conflicting Priorities? Issues of Gender Equality in South Africa's Customary Law
- Marjoleine Zieck, The 1956 Hungarian Refugee Emergency, An Early and Instructive Case of Resettlement
- Joanna Diane Caytas, Women's Reproductive Rights as a Political Price of Post-communist Transformation in Poland
- Stephen Riley, The Function of Dignity
- Opinion Articles
- George R. Lucas, Privacy, Anonymity, and Cyber Security
- Perry Keller, Re-opening the Door to the First Amendment
- Troy Lavers, Aggression, Intervention and Powerful States: Missed Lessons from Feminist Methodologies on Peace and Security Issues
- Special Issue: Changing subjects: Rights, remedies and responsibilities of individuals under global legal pluralism
- Turkuler Isiksel & Anne Thies, Changing subjects: Rights, remedies and responsibilities of individuals under global legal pluralism
- Turkuler Isiksel, Global legal pluralism as fact and norm
- Erika De Wet & Jure Vidmar, Conﬂicts between international paradigms: Hierarchy versus systemic integration
- Christina Eckes, Individuals in a pluralist world: The implications of counterterrorist sanctions
- Anne Thies, EU membership of the WTO: International trade disputes and judicial protection of individuals by EU Courts
- Chris Hilson, The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action
- Robert McCorquodale, Pluralism, global law and human rights: Strengthening corporate accountability for human rights violations
- Beatrice I. Bonafé, Coordinating concurrent legal orders in the prosecution of international crimes
Frick & Müller: Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives
Islam and International Law explores the complex and multi-faceted relationship of international law and Islam both as a religion and a legal order. Current debates on Sharia, Islam and the “West” often suffer from prejudice, platitudes, and stereotypes on both sides. The present book seeks to engage such self-centrism by providing a plurality of perspectives, both in terms of interdisciplinary research and geographic backgrounds. The volume thus brings together 20 contributions from scholars who cover pressing issues in fields such as the use of force in Islamic international law, Islam’s contribution to the development of diplomacy and the rule of law, controversies as to the role of the individual, human rights and international criminal law, as well as Islamic visions of world order in a globalizing world.
Call for Papers: International Human Rights Law in Refugee Status Determination: Comparative Practice and Theory
CALL FOR PAPERS
International Human Rights Law in Refugee Status Determination: Comparative Practice and Theory
Venue: Institute of Advanced Legal Studies
Date: London, 13-14 November 2013
We write to share news of the forthcoming conference on ‘International Human Rights Law in Refugee Status Determination: Comparative Practice and Theory’ that will take place at the Institute of Advanced Legal Studies, London, on 13 and 14 November 2013.
This 1½ day conference brings together leading experts to reflect comparatively on the practical and theoretical impact of international human rights law upon refugee status determination. Three panels will explore comparative practice from around the world and one will be addressed to broader cross-cutting thematic issues. Some further details can be found in the outline below.
For the final thematic panel, we are keen to receive additional contributions, particularly on the following broad topics and their implications for our understanding of the scope of refugee definitions: sexual and gender identity; combatants and military service; permissible limitations to rights (such as the freedom to manifest one’s religion); and internal protection/flight alternative.
If you wish to propose a paper to be presented on this panel, please submit a short abstract of up to 300 words to email@example.com and firstname.lastname@example.org by Friday **5 July 2013**.
Please note that presenters will be asked to submit a draft paper of 5 000-8 000 words by 1 November 2013 to enable paper-sharing in advance among the participants. Local accommodation will be offered to selected presenters, as well as a contribution towards economy travel expenses of up to £50 (UK), £150 (Europe), £500 (World). After the event, revised papers will be submitted to Martinus Nijhoff for publication in an edited collection.
The conference is organised by the Refugee Law Initiative, University of London, jointly with the Centre for Refugee Studies (York, Canada), Harvard Immigration and Refugee Clinical Program (Harvard, USA), International Refugee and Migration Law Project (UNSW, Australia), International Refugee Law Research Programme (Melbourne, Australia) and other institutions, and includes papers by prominent academics and practitioners.
Registration for the conference will be opened shortly. If you are interested in participating other than as a presenter, please email the convenors so that we can keep you informed.
We look forward to hearing from you.
New Zealand Immigration and Protection Tribunal
David James Cantor
Refugee Law Initiative, School of Advanced Study, University of London
International Human Rights Law in Refugee Status Determination:
Comparative Practice and Theory
London, 13-14 November 2013
International human rights law (IHRL) has assumed an increasingly important role in refugee status determination (RSD) over the past twenty years. At the same time, the legal consequences of this interaction remain a source of considerable contention. Whilst much of the debate has taken place in abstract and general terms, the conference seeks to shift the focus to a detailed comparative analysis of how this relationship is configured by different jurisdictions in practice.
The simple fact that RSD takes place within a wide range of different jurisdictional contexts requires a new point of departure. Indeed, these express a vast variance based, inter alia, on the refugee and IHRL instruments ratified by the country, the ways in which these have been incorporated into domestic law, the interpretation of these instruments through the lens of local legal cultures, and the differing nature of RSD procedures internationally. The conference will provide an important new perspective on the divergent ways that such factors have moulded the relationship between IHRL and refugee law at the level of national RSD practice.
As well as generating important new practical understandings of RSD, the resulting analysis will feed back into wider theoretical debates about the influence of IHRL in RSD. For instance, the obviously uneven cross-jurisdictional terrain raises serious questions about the capacity of IHRL to cohesively shape RSD at the international level. Questions about transnational processes of borrowing between different jurisdictions also arise. Whether IHRL should be used to interpret refugee law and, if so, in which of its components, is also an important issue.
Broad questions to be addressed from both theoretical and comparative perspectives include:
1. Does IHRL influence RSD in practice at the national level? If so, what are the key factors that determine the degree and nature of such influence?
2. Are there particular areas of refugee law interpretation where the influence of IHRL is especially pronounced in national practice?
3. Has the IHRL influence on RSD – and refugee law - been broadly positive or negative?
4. Does IHRL facilitate the convergence of RSD processes at the international level?
The conference provides the opportunity both for a stock-taking of transnational developments over the past twenty years and for the identification of future challenges. Given the scope of the material, it will be of interest to lawyers, judges, practitioners and scholars in the areas of refugee, human rights and EU law, as well as humanitarian workers and academics, government authorities, policy researchers and students.
If you wish to propose a paper to be presented on this panel, please submit a short abstract of up to 300 words to email@example.com and firstname.lastname@example.org by Friday **5 July 2013**.
The Society bestows book awards, known as ASIL Certificates of Merit, annually in three categories: a) to a book for its preeminent contribution to creative scholarship; b) to a book which exhibits high technical craftsmanship and is of high utility to practicing lawyers and scholars; and c) to a book in a specialized area of international law, such as business transactions, economic law, environmental law, human rights, humanitarian law or private international law.
Books of any nationality, language, or place of publication that have been published in the 24 months preceding February 1, 2014, are eligible. To nominate works of scholarship, please provide a list of titles to be nominated along with send six (6) copies of them by October 1, 2013, to:
American Society of International Law
2223 Massachusetts Avenue, NW
Washington, DC 20008
Sunday, June 30, 2013
- Europas sicherheitspolitische Handlungsfähigkeit stärken (auszugweise Dokumentation eines Diskussionspapiers von Andreas Schockenhoff und Roderich Kiesewetter)
- Dieter Wiefelspütz, Hände weg vom Parlamentsheer!
- Andreas L. Paulus & Henrik Jacobs, Neuere Entwicklungen bei der Parlamentsbeteiligung für den Auslandseinsatz der Bundeswehr
- Dirk Peters & Wolfgang Wagner, Zwischen Effizienz und Legitimität: Parlamentarische Kontrolle von Militäreinsätzen im weltweiten Vergleich
- Christoph Harig, Die zivile Kontrolle der Streitkräfte in Argentinien und Brasilien
- Klaus Schlichtmann, Friede als Rechtsordnung: Der Beitrag von Alfred Hermann Fried (1864–1921) zur Entwicklung des Völkerrechts
- Mischa Hansel, Waffenhandelsvertrag und UN Aktionsprogramm – Zum Stand der Global Governance im Bereich der kleinen und leichten Waffen
The main aim of this book is to assess the importance of international rules for foreign direct investment and the major challenges to international harmonization of those rules. Particular attention is paid to the most controversial and contentious issues with the view of appraising the prospects for establishing global rules. The book is divided into three parts; the first part includes papers assessing the role of national and international legislation with further distinction being made between bilateral, regional and multilateral legal frameworks. The second part addresses regulatory issues of technology transfer, labor, environment, subsidies and investment incentives, national security, public services and sovereign wealth funds. The final part looks at the experience of some international fora in addressing these issues and at some theoretical and conceptual problems of rule harmonization.