- Bruno Nascimbene, La centralità della persona e la tutela dei suoi diritti
- Claudia Morviducci, Il Servizio europeo per l’azione esterna: un inizio problematico
- Nicoletta Parisi, La Procura europea: un tassello per lo spazio europeo di giustizia penale
- Ornella Porchia, La dinamica dei rapporti tra norme interne e dell’Unione nel dialogo tra giudici nazionali e Corte di giustizia
- Stefano Montaldo, La competenza dell’Unione europea ad adottare norme di diritto penale ex art. 83, par. 2, TFUE e sue possibili applicazioni
- Note e Commenti
- Pieralberto Mengozzi, Il Trattato sul Meccanismo di stabilità (MES) e la pronuncia della Corte di giustizia nel caso Pringle
- Antonello Schettino, Il difficile rapporto tra public e private enforcement: il caso dell’accesso agli atti nei programmi di clemenza
Saturday, July 13, 2013
- Special Issue: Economic Policy, Governance and Institutions in Times of Crisis
- Henning Meyer & Andreas Klasen, What Governments Can Do to Support their Economies: The Case for a Strategic Econsystem
- Martin Baur, Pierre-Alain Bruchez & Barbara Schlaffer, Institutions for Crisis Prevention: the Case of Switzerland
- Christian Westerlind Wigstrom, A British Investment Bank: Why and How?
- Alexander Herzog-Stein, Gustav A. Horn & Ulrike Stein, Macroeconomic Implications of the German Short-time Work Policy during the Great Recession
- Matthias Kollatz-Ahnen, European Intervention Mechanisms for Growth: Budget and the European Investment Bank
- Stefan Collignon, How (Not) to Reform the Euro Area's Economic Governance
- Alfred Höhn, Thorsten Schramm & Thomas Straubhaar, A Model for a Fiscal Union? What Europe Can Learn from the German Experience
- Simon Wren-Lewis, Macroeconomic Stabilisation in the Eurozone: Lessons from Failure
- Emilios Avgouleas, Effective Governance of Global Financial Markets: an Evolutionary Plan for Reform
Friday, July 12, 2013
The Department of State is pleased to announce the release of the 2012 Digest of United States Practice in International Law, covering developments during calendar year 2012. The Digest provides the public with a record of the views and practice of the Government of the United States in public and private international law. The official edition of the 2012 Digest is available exclusively on the State Department’s website. Past Digests covering 1989 through 2011 are also available on the State Department’s website. The Digest is edited by the Office of the Legal Adviser.
In Religion, Violence, and Human Rights: Protection of Human Rights as Justification for the Use of Armed Force, 41 Journal of Religious Ethics 1 (2013), James Johnson discusses an important dilemma for contemporary society: when should transnational military force be permitted to protect human rights? Professor Johnson uses the relatively recent doctrine of a "responsibility to protect" as the centerpiece of his paper, characterizing it as a reaction to legal concepts that emerged in the "Westphalian system." Yet the doctrine, at least as it relates to the use of military force, is not a reaction to that system but, rather, to the relatively recent system of the UN Charter, particularly its relegation to the Security Council of the exclusive authority to determine when military force should be used for purposes other than self-defense. When the Cold War ended and the Security Council failed to act to protect human rights, the doctrine was born.
- Keren Yarhi-Milo, In the Eye of the Beholder: How Leaders and Intelligence Communities Assess the Intentions of Adversaries
- Daniel W. Drezner, Military Primacy Doesn't Pay (Nearly As Much As You Think)
- Keir A. Lieber & Daryl G. Press, Why States Won't Give Nuclear Weapons to Terrorists
- Reconsidering the Libyan Intervention
- Alan J. Kuperman, A Model Humanitarian Intervention? Reassessing NATO's Libya Campaign
- Aidan Hehir, The Permanence of Inconsistency: Libya, the Security Council, and the Responsibility to Protect
- Davis Brown, Michael L. Gross, Tamar Meisels, & Jerome Slater, Just War Theory and the 2008–09 Gaza Invasion
- Paul R. Pillar, Robert Reardon, James K. Sebenius, & Michael K. Singh, Nuclear Negotiations with Iran
Thursday, July 11, 2013
Braun: Globalization-Driven Innovation: The Investor as a Partial Subject in Public International Law – an Inquiry Into the Nature and Limits of Investor Rights
Given the current remarkable state of development of international investment law, it is surprising that to date neither the actual nature of the investor’s rights resulting from investment treaties nor the possible consequences which arise for the investor, the states and international law, have been sufficiently defined. This is all the more astounding, as the intrinsic nature and the possible limits of the investor’s rights are not only of theoretical interest, they are also decisive for the resolution of many substantial practical problems as well as for the positioning of international investment law within public international law. Furthermore, recent arbitration rulings concerning the fundamental question of whether the investor’s rights are of a direct, a derivative, or a contingent nature, Archer Daniels (2007), Corn Products (2008) and Cargill (2009), demonstrate diametrically differing approaches. This paper shows in its analysis that neither the procedural nor material rights of the investor are simply derived from the home state but are – in clear contrast to the model of diplomatic protection – in fact to be understood as individual direct rights. The investor is elevated to the status of a (partial) subject in international law. Of course, the states are, and remain, the ‘masters of the treaties’ and can correct or even revoke these at any time with prospective effect. However, as long as investment treaties confer distinct rights on the investor, arbitral tribunals and states have to recognize these direct rights and the states must accept that these can also be applied against them.
The direct rights paradigm could have consequences for – inter alia – the continued validity of ‘survival’ clauses in favor of the legal position of the investor even in the case of a mutual revocation of the investment treaty by both treaty states, the limits which the rights of the investor put on declarations and interpretations made by the treaty states during ongoing arbitration proceedings, the interpretation of investment standards more strongly based on human rights elements due to the investor’s international legal personality, and the effect on the validity of the interpretation maxim in dubio mitius. The investor’s rights are limited, however, by the relations between the respective states in international law. Therefore, the investor has to accept permissible countermeasures, yet the quality of its individual direct rights can be seen in the fact that the investor is possibly entitled to receive compensation for this acceptance and the immediate injury suffered. The investor can indeed exercise its rights but, due to the superior interests of the states in the inviolability of the investment treaties they have concluded and their resulting ordering function, cannot impinge on these rights through a waiver. The paradigm of the elevation of the investor to partial subject in international law can be understood as a manifestation of globalization and can be embedded in the broader development of international law. The recognition of the investor by investment treaties as an effective unit in international law contributes to international law itself becoming a realistic and modern legal order not only for states but also for non-state actors.
- Theme: ‘Terrorists’ or ‘Freedom Fighters’: How to Deal with Non-State Armed Actors?
- Hans J. Giessmann, Human Rights in Non-International Armed Conflicts: A Counter-Terrorism Issue?
- Stefanie Herr, Einbindung durch Anerkennung? Nichtstaatliche Gewaltakteure und das humanitäre Völkerrecht
- Eva Dingel, Hezbollah’s Rise and Decline? How the Political Structure Seems to Harness the Power of Lebanon’s Non-State Armed Group
- Gary LaFree, Erin Miller & Sue-Ming Yang, Terrorism in Indonesia, the Philippines and Thailand, 1970 to 2008
- Magnus Ranstorp, ‘Lone Wolf Terrorism’. The Case of Anders Breiv
- Andrea Bianchi & Delphine Hayim, Unmanned Warfare Devices and the Laws of War: The Challenge of Regulation
- Matthias Mader & Harald Schoen, Alles eine Frage des Blickwinkels? Framing-Effekte und Bevölkerungsurteile über einen möglichen Bundeswehreinsatz in Libyen
- Lisbeth Zimmermann, Andreas von Staden, Angela Marciniak, Linda Wallbott, & Friedrich Arndt, Muss Ordnung sein? Zum Umgang mit Konflikten zwischen normativen Ordnungen
- Nicole Deitelhoff & Lisbeth Zimmermann, Aus dem Herzen der Finsternis: Kritisches Lesen und wirkliches Zuhören der konstruktivistischen Normenforschung Eine Replik auf Stephan Engelkamp, Katharina Glaab und Judith Renner
- Europa in der Krise: Die Zukunft der EU zwischen Integration und Desintegration
- Philipp Genschel & Markus Jachtenfuchs, Alles ganz normal! Eine institutionelle Analyse der Euro-Krise
- Hans-Jürgen Bieling, Das Projekt der Euro-Rettung und die Widersprüche des europäischen Krisenkonstitutionalismus
- Christian Fehlker, Demosthenes Ioannou, & Arne Niemann, Die Errichtung einer Europäischen Finanzmarktunion: Ein Fall von funktionalem spillover
- Loukas Tsoukalis, We Need a New Grand Bargain in Europe
Wednesday, July 10, 2013
New Issue: Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre
- Agora: Legal Issues Pertaining to Vessel Protection Detachments and Embarked Private Armed Security Teams
- Matteo Tondini, Some Legal and Non-Legal Reflections on the Use of Armed Protection Teams on Board Merchant Vessels: An Introduction to the Topic
- Clive R. Symmons, Embarking Vessel Protection Detachments and Private Armed Guards on Board Commercial Vessels: International Legal Consequences and Problems under the Law of the Sea
- Kiara Neri, Use of Force by Military Vessel Protection Detachments
- Marten Zwanenburg, Military Vessel Protection Detachments: The Experience of the Netherlands
- Valeria Eboli & Jean Paul Pierini, Coastal State Jurisdiction over Vessel Protection Detachments and Immunity Issues: The Enrica Lexie Case
The International Criminal Court has institutionalized the concept of individual responsibility for human rights violations. The jurisprudence of international criminal law has developed along with the institution. Affirmative defenses in the mitigation of punishment or avoidance of responsibility are becoming increasingly important in international criminal procedure. We contend that diminished culpability based on advances in neuroscience provides the most challenging set of choices for the international legal community. Of the variety of affirmative defenses, emerging neuroscience-based defense provides the most challenging set of choices for the international legal community. The Esad Landzo case at the ICTY brings these challenges into focus. We discuss the difficult choices the ICC will have to make to balance the rights and needs of the victims, and the due process rights of the accused.
- Bharat Malkani, The Obligation to Refrain from Assisting the Use of the Death Penalty
- Yaniv Roznai, The Theory and Practice of 'Supra-Constitutional' Limits on Constitutional Amendments
- Clíodhna Murphy, The Enduring Vulnerability of Migrant Domestic Workers in Europe
- Anne Sanders, Cohabitants in Private Law: Trust, Frustration and Unjust Enrichment in England, Germany and Canada
- Anna Petrig, The Use of Force and Firearms by Private Maritime Security Companies Against Suspected Pirates
- Shorter Articles
- Cameron Sim, Choice of Law and Anti-Suit Injunctions: Relocating Comity
Tuesday, July 9, 2013
A Working Group of the Hague Conference on Private International Law is revisiting possible multilateral rules on the recognition of foreign judgments. This was the subject of broader negotiations on jurisdiction and judgments that ran from 1992 until 2005, concluding in the Hague Convention on Choice of Court Agreements. Any effort to coordinate judgments recognition rules necessarily requires consideration of the jurisdictional bases of authority of the court from which a judgment originates. Problems of coordination are exacerbated because differences in existing jurisdictional bases are colored by: (1) basic differences between civil law and common law approaches to judicial analysis, (2) differences in the extent to which jurisdiction is a constitutional matter, and (3) differences in focus on the interests of plaintiffs and defendants. Recent developments in both the United States and the European Union have both highlighted existing differences in approaches to adjudicative jurisdiction, and demonstrated some areas in which there may be greater hope for common ground. While rules on general jurisdiction may be moving closer together, rules on specific jurisdiction seem to be suffering greater divergence. Any new multilateral efforts will also have to take into account the impact on parallel efforts to obtain ratifications of the Choice of Court Convention. While there are jurisdictional bases on which agreement should not be difficult in a new judgments project, those are probably the bases for which recognition and enforcement abroad will be least valuable to the judgment creditor.
This paper was originally prepared for a Panel on Regulating Forum Shopping: Courts’ Use of Forum Non Conveniens in Transnational Litigation at the 18th Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium: Tug of War: The Tension Between Regulation and International Cooperation, held at New York University School of Law, October 25, 2012. The doctrines of forum non conveniens and lis alibi pendens have marked a significant difference in approach to parallel litigation in the common law and civil law worlds, respectively. The forum non conveniens doctrine has recently taken a beating. This has come (1) in its UK form as a result of decisions of the European Court of Justice, (2) through a lack of uniformity of application throughout the common law world, (3) as a result of legislation and litigation in Latin American countries, and (4) through the misapplication of the forum non conveniens doctrine in cases brought to recognize and enforce foreign arbitration awards. This article reviews those challenges, and considers the compromise reached in 2001 at the Hague Conference on Private International Law when that body was considering a general convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It concludes with thoughts on the importance of remembering that compromise and the promise it holds for bringing legal system approaches to parallel litigation closer together.
As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible re-characterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory, is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the Lubanga and Katanga cases.
Monday, July 8, 2013
The paper seeks to examine the content and nature of prevention obligations in international environmental law. Despite their frequent reference to these obligations in practice and in the literature their exact content remains ill-defined. Similarly, their exact nature of these obligations has not been sufficiently explored. The first part analyses the content of prevention obligations (notification, environmental impact assessment, exchange of information and negotiations/consultations). The second part, discusses and evaluates the dual nature of these obligations: as autonomous primary obligations of result and as elements of the general due diligence no-harm obligation.
Ce livre aborde les diverses problématiques qui touchent à la reconnaissance du droit de l'Homme à l'eau potable. Mais s'agit-il d'un droit à la fois contraignant, universel et autonome ? Pour répondre à cette question, l'auteur passe en revue l'ensemble des sources du droit international, en portant une attention particulière aux divers documents qui ont été publiés au cours de la dernière décennie, depuis l'observation générale n° 15 du Comité des droits économiques, sociaux et culturels, jusqu'à la Déclaration de Rio+20. Cette analyse détaillée permet de définir la forme, la nature et la portée du droit à l'eau tel qu'actuellement reconnu en droit international. Ces réflexions sur le statut juridique du droit à l'eau en droit international permettent ainsi de faire le point sur les avancées progressives enregistrées par celui-ci en termes de reconnaissance et d'application, tout en relevant les lacunes qui persistent.
Sunday, July 7, 2013
Structural human rights deficiencies in the member states of the European Convention of Human Rights have caused numerous individual applications to the European Court of Human Rights and are a considerable factor in the Court's persistent overload crisis. The Pilot-Judgment Procedure was devised to tackle these structural deficiencies and has become an important instrument of the Court. Dominik Haider examines to which extent the Pilot-Judgment Procedure is reconcilable with the European Convention on Human Rights. After an analysis of the member states’ obligations to resolve structural deficiencies, the author asks if the European Court of Human Rights is empowered to take the procedural steps which are characteristic of the Pilot-Judgment Procedure. In particular, the Court's express orders are critically scrutinised.