Saturday, August 31, 2013
As the economies of China, India, and other Asian nations continue to grow, these countries are seeking greater control over the rules that govern international trade. Setting the rules carries with it the power to establish advantage, so it’s no surprise that everyone wants a seat at the table—or that negotiations over rules often result in stalemates at meeting of the World Trade Organization.
Nowhere is the conflict over rule setting more evident than in the simmering “standards wars” over the rules that define quality and enable the adjudication of disputes. In Global Rivalries, Amy A. Quark explores the questions of how rules are made, who makes them, and how they are enforced, using the lens of cotton—a simple commodity that has become a poignant symbol of both the crisis of Western rule making power and the potential for powerful new rivals to supplant it. Quark traces the strategies for influencing rule making processes employed not only by national governments but also by transnational corporations, fiber scientists, and trade associations from around the globe. Quark analyzes the efficacy of their approaches and the implications for more marginal actors in the cotton trade, including producers in West Africa.
By placing the current contest within the historical development of the global capitalist system, Global Rivalries highlights a fascinating interaction of politics and economics.
Friday, August 30, 2013
Customary international law, through its use within and between the political branches (as well as by federal courts), has become integral to interpreting U.S. law, as the historic line separating domestic and international law is increasingly blurred. Nevertheless, international custom is sometimes misperceived as the exclusive province of the President in his role as the sole representative of the United States in foreign affairs; its function in the Congress has been largely ignored and its use in the courts, misunderstood. Whereas judges should exercise caution in utilizing international custom, political actors should have greater flexibility in incorporating customary international law into their decision-making. The resultant potential risk of illegality by the executive or legislative branch — where custom is misused to evade statutory or constitutional provisions — requires increased scholarly attention to this area of law to promote greater transparency and accountability. For instance, in the recent debate on the lawfulness of U.S. participation in NATO’s intervention in Libya, the Obama Administration used in part the international custom of the responsibility to protect civilians to argue that U.S. military activities in Libya did not constitute hostilities under the War Powers Resolution. Where the core purpose of the Resolution was to avert large-scale military operations (like in Vietnam) without Congressional authorization, the Executive Branch reasoned, it should not be interpreted to apply to limited operations to prevent atrocities (like in Libya). Notably, legislators did not challenge this interpretive argument through binding legislation such as appropriations riders, nor even through non-binding concurrent resolutions whose full legal effect could depend on their recognition under customary international law. This Article fills a gap in the existing scholarship, which has overlooked the role of Congress and its interactions with the Executive Branch over the interpretation of domestic law in light of customary international law. Since this intellectual lacuna can become a self-fulfilling prophecy, the Article seeks to help restore the balance between the political branches over international custom.
The first version of the UNCITRAL Arbitration Rules was endorsed by the General Assembly of the United Nations in December 1976. Now considered one of UNCITRAL's greatest successes, the rules have had an extraordinary impact on international arbitration as both instruments in their own right and as guides for others. The Iran-US Claims Tribunal, for example, employs a barely modified version of the rules for all claims, and many multilateral and bilateral foreign investment treaties adopt the UNCITRAL Rules as an arbitral procedure. The Rules are so pervasive and the consequences of the new version potentially so significant that they cannot be ignored. This commentary on the Rules brings the official documents together in one volume and includes the insights and experiences of the Working Group that are not included in the official reports.
This fascinating Handbook explores the interplay between international human rights law and international humanitarian law, offering expert analysis on the increasingly complex issues surrounding their application in armed conflicts across the world. Contributors to this volume provide a comprehensive treatment of the ongoing relationship between human rights law and humanitarian law, from the historical background and origins of the two bodies of law to their various applications today. Divided into four parts – Historical Background, Common Issues, The Need for a Combined Approach, and Monitoring Mechanisms – the Handbook presents a rich and varied spectrum of original research and thought from some of the brightest minds in the field.
Humanitarian intervention remains a very controversial area of international law. For many commentators the paradigm case is that of NATO's 1999 operation over Kosovo, but states are still divided on the legality of this use of force. As Kosovo pursues independence today the question whether it was created by the unlawful use of force is still important. The 2008 conflict between Russia and Georgia in Abkhazia and South Ossetia raises similar questions. The doctrine of humanitarian intervention is strongly opposed by the Non-Aligned Movement who see it as a pretext for intervention by powerful states. Few states openly support the legal doctrine; even fewer have relied on it to justify their use of force. Its legal basis is apparently an interpretation of Article 2(4) of the UN Charter which allows the use of force to further the purposes of the UN, in particular the protection of human rights. The UK is the foremost supporter in public. It has invoked the doctrine to justify the no-fly zones over Iraq, and has made attempts to draw up a legal framework to govern the use of force on behalf of the international community to prevent humanitarian catastrophes. However, in his secret Memorandum on the 2003 use of force against Iraq the UK Attorney-General acknowledged that the doctrine was controversial. The position of the USA remains uncertain: President Obama's 2010 US National Security Strategy is equivocal to say the least.
Recently there have been attempts to shift the focus away from this controversial doctrine to a new concept, that of the Responsibility to Protect. This was unanimously supported by the member states of the UN in the Outcome Document of the Millennium Summit, and was hailed as a major advance. There is some disagreement as to whether the use of force in the name of the Responsibility to Protect can be carried out only by the UN Security Council and whether it rules out the unilateral use of force by states. Various bodies within the UN have worked to elaborate on this concept and to further its implementation in practice, but it remains more an aspiration than an existing duty under international law.
Traditional socio-legal and legal scholarship have criticized the social structure of international arbitration. Some scholars have characterized this group of experts as a network of 'grand old men' and international arbitration as a 'white, male club.' However, faced with difficulties of data availability, they have failed to inform criticism with even basic social structure analysis. With unprecedented access to the historical data of arbitrator appointment in all arbitration proceedings under ICSID between 1972 and 2011, this article is the first to study the social structure of investor-State arbitrators. Using network analytics, a long-standing but recently popularized methodology for understanding social structures, the article shows the structure of connections between international arbitrators generated by formal appointments. Moreover, the visualizations in this article and the subsequent analytics provide insight into the arbitration world, gender imbalances, hierarchy, and evolution and generating dynamics. The article shows how the informal prestige and influence of jurists is far from equal, reveals the 'grand old men' (and women) or 'power-brokers' and 'bridges' in investor-State arbitration, and argues that arbitrators’ social capital may be generated through a process of preferential attachment. Arbitrators who have been appointed more frequently are more likely to attract further appointments.
Thursday, August 29, 2013
This book argues that it can be beneficial for the United States to talk with 'evil' – terrorists and other bad actors – if it engages a mediator who shares the United States' principles yet is pragmatic. It shows how the US can make better foreign policy decisions and demonstrate its integrity for promoting democracy and human rights, by employing a mediator who facilitates disputes between international actors by moving them along a continuum of principles, as political parties act for a country's citizens. This is the first book to integrate theories of rule of law development with conflict resolution methods, and it examines ongoing disputes in the Middle East, North Korea, South America and Africa. It draws on the author's experiences with The Carter Center and judicial and legal advocacy training to provide a sophisticated understanding of the current situation in these countries and of how a strategy of principled pragmatism will give better direction to US foreign policy abroad.
This paper begins by asking which states initiate litigation on the use of force during ongoing armed conflicts. In practice it has been militarily weaker states that have turned to the ICJ in such circumstances, and that routinely request provisional measures in these cases. The next section considers resort to the ICJ after the end of a conflict. The chapter goes on to discuss the ICJ’s decisions on the legality of the use of force in two of its most important cases, its first ever judgment, Corfu Channel, and its landmark judgment in the Nicaragua case. The next section considers whether the ICJ has gone out of its way to assert jurisdiction in cases concerning the use of force; it is clear from an overview of its jurisprudence that it has not done so. However, its assertion of jurisdiction in Nicaragua and Oil Platforms was controversial and the next sections consider the Court’s reasoning in these cases. The paper concludes by discussing arbitral awards and Advisory Opinions on the use of force and considering why states resort to judicial mechanisms in these cases.
Voon, Mitchell, & Munro: Legal Responses to Corporate Manoeuvring in International Investment Arbitration
Host states not infrequently find themselves responding to claims by investors under international investment agreements (‘IIAs’) following a series of corporate steps to enable the claim to take place: restructuring of existing chains of corporate ownership; transfers of assets to new or existing entities; changes in corporate nationality. These corporate manoeuvres can create legal difficulties for investor claimants in both procedural and substantive terms. If the actions precede the claim but post-date the underlying ‘dispute,’ the investor may be unable to enjoy the protection of the relevant IIA. If the actions indicate that the investment is not in fact owned or controlled by the claimant, treaty protection may be similarly barred based on the definition of investment or investor or the inclusion of a ‘denial of benefits’ clause. Finally, at least the most egregious forms of corporate manoeuvring in view of an ongoing or foreseeable dispute with the host State may constitute an ‘abuse of rights,’ again excluding the investor from protection under the relevant IIA. The incoherent manner in which tribunals have resolved these questions makes their significance unpredictable, including in the Philip Morris v Asia case currently underway under the Hong Kong-Australia Bilateral Investment Treaty. Less formalistic responses and a willingness to recognise a doctrine of abuse of rights could assist in increasing consistency in this important field of international investment law.
Voluntary repatriation is now the predominant solution to refugee crises, yet the responsibilities states of origin bear towards their repatriating citizens are under-examined. Through a combination of legal and moral analysis and case studies of the troubled repatriation movements to Guatemala, Bosnia and Mozambique, Megan Bradley develops and refines an original account of the minimum conditions of a 'just return' process. The goal of a just return process must be to recast a new relationship of rights and duties between the state and its returning citizens, and the conditions of just return match the core duties states should provide for all their citizens: equal, effective protection for security and basic human rights, including accountability for violations of these rights. This volume evaluates the ways in which different forms of redress such as restitution and compensation may help enable just returns, and traces the emergence and evolution of international norms on redress for refugees.
The UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001, which entered into force internationally in 2009, is designed to deal with threats to underwater cultural heritage arising as a result of advances in deep-water technology. However, the relationship between this new treaty and the UN Convention on the Law of the Sea is deeply controversial. This study of the international legal framework regulating human interference with underwater cultural heritage explores the development and present status of the framework and gives some consideration to how it may evolve in the future. The central themes are the issues that provided the UNESCO negotiators with their greatest challenges: the question of ownership rights in sunken vessels and cargoes; sovereign immunity and sunken warships; the application of salvage law; the ethics of commercial exploitation; and, most crucially, the question of jurisdictional competence to regulate activities beyond territorial sea limits.
Wednesday, August 28, 2013
The 1951 Convention relating to the Status of Refugees, and its 1967 Protocol, and many other important international instruments recognize the unique role the UNHCR plays in protecting refugees and supervising international refugee law. This in-depth analysis of the UNHCR's supervisory role in the international refugee protection regime examines the part played by key institutions, organizations and actors in the supervision of international refugee law. It provides suggestions and recommendations on how the UNHCR's supervisory role can be strengthened to ensure greater State Parties' compliance to their obligations under these international refugee rights treaties, and contributes to enhancing the international protection of refugees and to the promotion of a democratic global governance of the international refugee protection regime.
Based on extensive empirical research, this ground-breaking book describes and analyses existing systems for enforcing sentences of imprisonment imposed by international criminal courts and makes recommendations for the strategic and structural development of the international penal system. In particular, it advocates a resocialisation-focused international penal policy delivered using restorative justice modalities post-conviction and the creation of an accountable international prison system. Singly or combined, these developments will contribute to the institutionalisation of the international penal system and enhance the international nature of the sanction, the international control over the way international punishment is enforced and the equal treatment of international prisoners. These developments will also help to ensure that international punishment is principled and progressive and implemented in a humane and effective system.
International criminal law lacks a coherent account of individual responsibility. This failure is due to the inability of international tribunals to capture the distinctive nature of individual responsibility for crimes that are collective by their very nature. Specifically, they have misunderstood the nature of the collective action or framework that makes these crimes possible, and for which liability can be attributed to intellectual authors and leaders. In this paper, I draw on the insights of comparative law and methodology to propose a new doctrine of perpetration that reflects the role and function of high level participants in mass atrocity while simultaneously situating them within the political and social climate which renders these crimes possible. This new doctrine is developed through a novel approach which combines and restructures divergent theoretical perspectives on attribution of responsibility in the English and German domestic criminal law systems as major representatives of the common law and civil law systems. At the same time, it harnesses social science literature to identify and capture, in doctrinal terms, the unique circumstances in which mass atrocity occurs.
Positioning itself within significant developments in genocide studies arising from misgivings about two noteworthy observers, Arendt and Milgram, this book asks what lies 'beyond the banality of evil'? And suggests the answer lies within criminology.
Offering the author's reflections about how to interpret genocide as a crime, Beyond the Banality of Evil: Criminology and Genocide endeavours to understand how the theories of criminal motivation might shed light on these stunning events and make them comprehensible. While a great deal has been written about the shortcomings of the obedience paradigm and 'desk murderers' when discussing the Holocaust, little has been said of what results when investigations are taken beyond these limitations. Through examination and analysis of the literature surrounding genocide studies, Brannigan frames the events within a general theoretical approach to crime before applying his own revised model, specifically to Rwanda and drawn from field-work in 2004 and 2005. This provides a new and compelling account of the dynamics of the 1994 genocide and its distinctive attributes of speed, popularity, totality and emotional indifference.
With a focus on the disarticulation of personal culpability among ordinary perpetrators, Beyond the Banality of Evil questions the effectiveness of individual-level guilt imputation in these politically based, collectively orchestrated crimes, and raises doubts about the utility of criminal indictments that have evolved in the context of models of individual misconduct.
Chakraborty, Chaisse, & Kumar: EU-India Bilateral Trade and Investment Agreement: Opportunities and Challenges
India has a long history of economic linkages with the EU member states. In recent period, the volumes of Indo-EU trade both in case of merchandise products and services have considerably increased and a number of investment collaboration opportunities are emerging. Since 2007 the two sides are engaged in the negotiations on concluding a Bilateral Trade and Investment Agreement (BTIA), which is expected to augment the present level of economic exchange further. Once completed in coming months, the BTIA will be the biggest trade agreement involving India, surpassing its earlier RTA with the ASEAN countries. However, while EU and India can collaborate in several spheres, the potential conflict of interest may not be uncommon either. In particular, the provision of farm subsidies offered by the EU to local producers, imposition of anti-dumping measures on several Indian export categories in EU markets, barriers on movement of professionals, EU interest in inclusion of several WTO-Plus provisions in the agreement etc. are among the concern areas of India. By looking at the trade data and the negotiating dynamics, the present analysis attempts to understand the challenges and opportunities for India in the EU market. The paper concludes that India needs to focus on augmenting its competitiveness for benefiting from the integration exercise.
- Elena Carpanelli & Brendan Cohen, A Legal Assessment of the 1996 Declaration on Space Benefits on the Occasion of its Fifteenth Anniversary
- Philip De Man, Rights Over Areas vs Resources in Outer Space: What's The Use of Orbital Slots?
- J.H. Castro Villalobos, The Mexican Space Agency
- Fausto Pocar, An Introduction to the PCA's Optional Rules for Arbitration of Disputes Relating to Outer Space Activities
Tuesday, August 27, 2013
There have been two major developments affecting international law on remedies in the last twenty years: the proliferation of tribunals and the International Law Commission’s Articles on State Responsibility. These developments make it timely to revisit the question I first examined in 1985, whether there is an international law of remedies. Does the diversity of tribunals mean that they have awarded different types of remedies or taken different approaches? How far have the guidelines in the ILC Articles brought uniformity? The paper examines these questions in the light of the jurisprudence of the International Court of Justice, the WTO Appellate Body, the Court of Justice of the European Union, the UNCC, regional human rights courts and other tribunals.
L’entrée en vigueur de la Convention des Nations-Unies sur le droit de la mer de 1982 a fait apparaître que le Tribunal international du droit de la mer institué par cette Convention pourrait faire double emploi avec la Cour internationale de justice. Dès lors, l’idée de prolifération des juridictions internationales avait fait jour et cette prolifération pouvait aboutir à un fractionnement du droit international. Or, l’étude du Tribunal international du droit de la mer permet de montrer qu’il n’en est rien. Cette juridiction spécialisée constitue un forum de règlement des différends internationaux original tant du point de ses procédures que de sa compétence. D’une part, les procédures en vigueur au sein du Tribunal se caractérisent par une extrême rapidité et, d’autre part, la compétence du Tribunal a pour conséquence que des entités autres les États peuvent agir devant cette nouvelle juridiction internationale. Au demeurant, l’analyse de la jurisprudence du Tribunal met en relief le fait que le Tribunal participe à la consolidation du droit international en même temps qu’il élargit le domaine d’application de ce dernier.
Carnegie: Instruments of Coercion: International Institutions and the Sites of Power in International Relations
The international institutions literature suggests that institutions help states cooperate by allowing states to credibly commit to specific policies. This paper argues that these commitments increase the costs associated with some foreign policy options, causing members to substitute towards less costly policies. The analysis is focused on a particular institution, examining how WTO membership affects states' manipulation of trade policies for coercion. I argue that because WTO membership curtails states' use of trade policies for foreign policy leverage, donors employ others levers of influence instead. After presenting detailed case study evidence in support of the theory, I test the model's predictions systematically, demonstrating that once states join the WTO, their trade flows become less correlated with political events, while other policy instruments, such as foreign aid allocation and unilateral preference programs, become more responsive to foreign policy issues.
- Territorial and Maritime Dispute (Nicaragua v. Colombia) (I.C.J.), with introductory note by David P. Riesenberg
- The Prosecutor v. Gotovina et al. (ICTY), with introductory note by Julian Elderfield
- Appeals Chamber Decisions on the Legality of the Special Tribunal for Lebanon and Trials In Absentia (STL), with introductory note by Martin Wählisch
- Catan and Others v. Moldova and Russia (Eur. Ct. H.R.), with introductory note by Jan Arno Hessbruegge
- Nada v. Switzerland (Eur. Ct. H.R.), with introductory note by Miša Zgonec-Rožej
- Scoppola v. Italy (Eur. Ct. H.R.), with introductory note by Djurdja Lazic
- Gutierrez v. Nevada (S. Ct. Nevada), with introductory note by Ronald J. Bettauer
- Food Assistance Convention, with introductory note by Marsha Echols
- Protocol to Eliminate Illicit Trade in Tobacco Products, with introductory note by Gian Luca Burci
- African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), with introductory note by Mike Asplet and Megan Bradley
Job Opening: PluriCourts - Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order (Researcher in International Criminal Law)
The Cologne Commentary on Space Law (CoCoSL) is a three-volume annotation on the norms of space law as contained in the Treaties of the United Nations and its General Assembly Resolutions. As a joint publication of the Institute of Air and Space Law of the University of Cologne and the German Aerospace Center (DLR), the commentary brings together the scientific and academic proficiency of the Institute and the practical and technical capacity of DLR. It constitutes essential reading for all academics, practitioners and technicians working in the field of space law and beyond.
Volume II comments on four UN Treaties of international space law: the 1968 Rescue Agreement, the 1972 Liability Convention, the 1975 Registration Convention and the 1979 Moon Agreement. Experienced authors from various countries representing different legal traditions elaborated on these four agreements which were concluded after the 1967 Outer Space Treaty. Many of the provisions and concepts of the Outer Space Treaty are further developed by the subsequent treaty law that is addressed in this book. The interpretation of the basic legal norms provided by Volume I, which comments on the Outer Space Treaty, thus constitutes a foundation for the commentary in Volume II.
Monday, August 26, 2013
What prompts the United Nations Security Council to intervene forcefully in some crises at high risk for genocide and ethnic cleansing but not others? In All Necessary Measures, Carrie Booth Walling identifies several systematic patterns in the stories that council members tell about conflicts and the policy solutions that result from them. Drawing on qualitative comparative case studies spanning two decades, including situations where the council has intervened to stop mass killing (Somalia, Bosnia-Herzegovina, and Sierra Leone) as well as situations where it has not (Rwanda, Kosovo, and Sudan), Walling posits that the arguments council members make about the cause and character of conflict as well as the source of sovereign authority in target states have the potential to enable or constrain the use of military force in defense of human rights.
At a moment when constructivist scholars in international relations are pushing beyond empirical claims for the value of norms toward critical analysis of such norms, All Necessary Measures establishes discourse's real-world explanatory power. From her comparative chronology, Walling demonstrates that humanitarian intervention becomes possible when the majority of Security Council members come to a shared understanding of the conflict, perpetrators, and victims—and probable when the Council understands state sovereignty as complementary to human rights norms. By illuminating the relationship between national interests and the core values of Security Council members and how it influences decision-making, All Necessary Measures suggests when and where the Security Council is likely to intervene in the future.
- David W. Rivkin, The Impact of International Arbitration on the Rule of Law – The 2012 Clayton Utz/University of Sydney International Arbitration Lecture
- Dan Sarooshi, Provisional Measures and Investment Treaty Arbitration
- Caline Mouawad & Elizabeth Silbert, A Guide to Interim Measures in Investor-State Arbitration
- Andreas Kulick, Sneaking Through the Backdoor – Reflections on Public Interest in International Investment Arbitration
- Joerg Risse, Ten Drastic Proposals for Saving Time and Costs in Arbitral Proceedings
- Guido Carducci, The New EU Regulation 1215/2012 of 12 December 2012 on Jurisdiction and International Arbitration – With Notes on Parallel Arbitration, Court Proceedings and the EU Commission’s Proposal
- Massimo V. Benedettelli, To Bifurcate or Not to Bifurcate? That is the (Ambiguous) Question
- Jawad Ahmad, The Indus Waters Kishenganga Arbitration and State-to-State Disputes
Before the twenty-first century, there was little legal precedent for the prosecution of sexual violence as a war crime. Now, international tribunals have the potential to help make sense of political violence against both men and women; they have the power to uphold victims' claims and to convict the leaders and choreographers of systematic atrocity. However, by privileging certain accounts of violence over others, tribunals more often confirm outmoded gender norms, consigning women to permanent rape victim status.
In Sex and International Tribunals, Chiseche Salome Mibenge identifies the cultural assumptions behind the legal profession's claims to impartiality and universality. Focusing on the postwar tribunals in Rwanda and Sierra Leone, Mibenge mines the transcripts of local and supranational criminal trials and truth and reconciliation commissions in order to identify and closely examine legal definitions of forced marriage, sexual enslavement, and the conscription of children that overlook the gendered experiences of armed conflict beyond the mass rape of women and girls. In many cases, a single rape conviction constitutes sufficient proof that gender-based violence has been mainstreamed into the prosecution of war crimes. Drawing on anthropological research in African conflicts, and feminist theory, Mibenge challenges legal narratives that reinscribe essentialized notions of gender in the conduct and resolution of violent conflict and uncovers the suppressed testimonies of men and women who are unwilling or unable to recite the legal scripts that would elevate them to the status of victimhood recognized by an international and humanitarian audience.
At a moment when international intervention in conflicts is increasingly an option, Sex and International Tribunals points the way to a more nuanced and just response from courts.
- Nicolette Butler, Possible Improvements to the Framework of International Investment Arbitration
- Kong Qingjiang, Bilateral Investment Rule-Making: BITs or FTAs with Investment Rules?
- S.M. Solaiman, Revisiting Securities Regulation in the Aftermath of the Global Financial Crisis: Disclosure – Panacea or Pandora’s Box? S.M. Solaiman
- Ling Ling He, On Re-invigorating the Australia-China Free Trade Agreement Negotiation Process
- Anil Kumar Kanungo & Kreeti Mahajan, Japanese Foreign Direct investment in Indian Automobile Sector Evolution and Practices
- Gilles Muller, The EU’s “Global Europe” Strategy and the Liberalization of Trade in Legal Services: The Impact of the EU Free Trade Agreements in Asia
- Martin Zobl, Daniel Thürer, & Alexander Kern, Die Legitimation der G20
- Kirsten Schmalenbach, Der Schutz der Zivilbevölkerung durch UN-Friedensmissionen und die Rechtsfolgen bei Mandatsversagen
- Beiträge und Berichte
- Robert Böttner, Von Nürnberg über Rom nach Kampala: Das Verbrechen der Aggression vor dem IStGH
Sunday, August 25, 2013
Espósito: Of Plumbers and Social Architects: Elements and Problems of the Judgment of the International Court of Justice in Jurisdictional Immunities of States
This analysis of the judgment of the International Court of Justice in the Jurisdictional Immunities case is conducted in two parts. The first briefly presents the basic elements of the judgment of the Court in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening); the second part identifies and discusses some problems raised by the judgment. These include the legal character of the rule of state immunity, the limits of the positivist methodology to establish state practice as evidence of customary international law and its exceptions, and the troubles with a strictly procedural approach to consider a possible exception to immunity for serious violations of international law and international humanitarian law. The comment concludes with a brief general assessment of the judgment of the Court, its role and the future development of the law of state immunities by national courts.