- Jennifer Antomo, Zum Verhältnis zwischen § 89b HGB sowie anderen Eingriffsnormen und internationalen Gerichtsstands- oder Schiedsvereinbarungen Zugleich Anmerkung zu BGH, Beschluss vom 5.9.2012 – VII ZR 25/12, IHR 2013, 35
- Sebastian Omlor & Gesa Beckhaus, Vermeintliche und tatsächliche Lücken im UN-Kaufrecht Zugleich Besprechung von BGH, Urteil vom 26.9.2012 – VIII ZR 100/11, IHR 2012, 231
Saturday, December 14, 2013
- Janine Natalya Clark, Normalisation through (re)integration: returnees and settlers in post-conflict Croatia
- Michele Lamb, Ethno-nationalist conflict, participation and human rights-based solidarity in Northern Ireland
- Anna Lawson & Mark Priestley, Potential, principle and pragmatism in concurrent multinational monitoring: disability rights in the European Union
- Dragan Golubovic, Freedom of association in the case law of the European Court of Human Rights
- Olubayo Oluduro & Ebenezer Durojaye, The implications of oil pollution for the enjoyment of sexual and reproductive rights of women in Niger Delta area of Nigeria
- Laure Paquette, The whistleblower as underdog: what protection can human rights offer in massive secret surveillance?
- Ayşegül Aydıngün, The ethnification and nationalisation of religion in the post-Soviet Georgian nation-state building process: a source of discrimination and minority rights violations?
Friday, December 13, 2013
Although it has been ranked the fourth largest destination for foreign direct investment (FDI) in the world, Brazil has not enacted specific legislation to promote or protect FDI. Nor are there any investment treaties in force, so Brazilian companies investing abroad act without international legal protection. Considering the country’s widely acclaimed “arrival” into the small family of the world’s major trading nations, the question of Brazil’s entry in the international FDI system – not only as an incentive to the inflow of foreign investment, but also to protect the investments of its national companies abroad – has become a hotly debated issue. This timely book, with its incisive reports on all important aspects of the matter, tackle this subject with prodigious knowledge and insight. With detailed analysis of investment-related legislation, including different legal and regulatory models, as well the examination of peculiarities of highly specialized industries present in Brazil, the authors cover such aspects as the following: investment in infrastructure, social areas such as education and health, commodities, and the oil and gas sector; to what extent expropriation under Brazilian law resembles the international standard of protection; political implications of Brazil’s FDI stance with regard to the balance of interest within the Latin American region; foreign investment in light of the principle of national treatment; enforceability of arbitration agreements vis-à-vis the state, state entities, and state-owned companies; conflicts of jurisdiction between state courts and arbitral tribunals; arbitration involving companies in liquidation and reorganization proceedings; public–partnership contracts; and investment-related aspects of human rights and intellectual property rights.
- Hans van Houtte & Maurizio Brunetti, Investment Arbitration – Ten Areas of Caution for Commercial Arbitrators
- Thomas Kendra, State Counterclaims in Investment Arbitration – A New Lease of Life?
- Jude Antony, Umbrella Clauses Since SGS v. Pakistan and SGS v. Phillipines – A Developing Consensus
- Harry Liu, Denis Brock, Qiu Yue, & Laura Feldman, Retrial Ruling of the Supreme People’s Court Settles the Disputes on the Jurisdiction over Joint Tort Cases – Litigation or Arbitration
- Ikram Ullah, Interim Measures in Arbitration under the Pakistani Legal Regime
Voon, Mitchell, & Munro: Parting Ways: The Impact of Investor Rights on Mutual Termination of Investment Treaties
Several States have terminated international investment agreements ('IIAs') in recent years — some alarmed at unexpected outcomes in certain investor — State cases, and others simply updating their IIAs as they conclude wider economic partnership agreements. States’ attempts to extinguish investor rights through the consensual termination of an IIA raise complex legal issues. As a threshold matter, investors are capable of deriving legal 'rights' under an IIA that may interfere with attempts at termination. However, the grant of such rights under an IIA depends on its specific wording and context. Moreover, although a pre-existing treaty breach for which a formal claim has already been brought cannot be affected by a subsequent termination, States parties to an IIA are free to agree to extinguish investor rights that have not yet been exercised, even with respect to a pre-existing breach. In terminating an IIA on the basis of mutual agreement, States parties also have (and have been shown to exercise) the power to override so-called 'survival' or 'sunset' clauses commonly found in IIAs, thereby excluding all future rights, obligations and claims under the treaty. This conclusion is based on fundamental precepts of the law of treaties and is unaffected by any alleged doctrine of 'acquired rights' in public international law or international investment law.
Airspace is a component of every nation's sovereign territory, but its upper border is uncertain. This article assesses the prospects for height limits to be created for airspace as increasing high-altitude human activity leads to events that will require jurisdiction to be determined. Taking the notion of an upper boundary to airspace, the paper develops a description of nations as three-dimensional territorial constructs. Among the implications of this would be a multiplication of state borders and border phenomena, and the potential for nations to be adjacent to each other vertically as well as horizontally.
Thursday, December 12, 2013
Call for Papers: Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law
3rd Conference of the Postgraduate and Early Professionals/Academics Network of the
Society of International Economic Law (PEPA/SIEL)
São Paulo (Brazil), 24 - 25 April 2014
Organised by PEPA/SIEL in cooperation with DIREITO GV – São Paulo Law School
SIEL was founded in 2008 to act as an umbrella organisation to foster coordination, collaboration and debate between International Economic Law (IEL) scholars, practitioners and national or regional IEL organisations around the world. SIEL’s Postgraduate and Early Professional/Academics Network (PEPA/SIEL) is, among other things, interested in fostering collaboration and mentoring opportunities for emerging academics and professionals in IEL. PEPA/SIEL fulfils these goals through various activities such as organising conferences at which emerging IEL academics and professionals can present and discuss their research in a supportive and welcoming environment. We are pleased to announce that the third conference will take place on Thursday 24 and Friday 25 April 2014 in São Paulo (Brazil).
Call for Papers
This conference offers postgraduate students (students enrolled in Masters or PhD programmes) and early professionals/academics (generally within five years of graduating) studying or working in the field of IEL an opportunity to present and discuss their research. It also provides a critical platform where participants can test their ideas about broader issues relating to IEL. One or more senior practitioners or academics will comment on each paper after its presentation, followed by a general discussion.
We invite submissions on any IEL topic including, but not limited to:
- trade, investment and monetary/financial policies;
- the interaction of international trade law, investment law and competition law with other branches of law governing intellectual property, human rights, environment and sustainable development;
- bilateral and regional economic integration and the multilateral trading system;
- comparative economic law, focussing on how international economic law interacts with laws, institutions and actors at the domestic level;
- law and practice in international economic governance and international organizations; and,
- philosophy, sociology, politics and economics of international economic law.
How and when to submit
Submissions should include a CV and a research abstract (no more than 400 words) and be sent no later than 12 January 2014 to firstname.lastname@example.org. Papers will be selected based on a double blind review conducted by a senior practitioner or academic and a conference organiser. Successful applicants will be notified by 31 January 2014, after which they are expected to submit a conference paper (no more than 4000 words) by 31 March 2014. Papers will be made available online via the SIEL website (www.sielnet.org).
General practical information about participating and attending the Conference
The deadline for registration is 17 February 2014. Registration has to be done online at the SIEL website (the registration page will be available shortly). Registration costs 45 GBP for non-SIEL Members, and 35 GBP for SIEL Members. SIEL Membership details may be found at the SIEL website (student membership is 5 GBP). The Registration fee covers conference materials and coffee breaks on both days.
Cancellations of participation must be made in writing to email@example.com. The deadline for cancellation is 6 April 2014. The registration fee minus an administrative fee of 10 GBP and any incurring bank fees will be refunded if the cancellation is done before or on the given date. Later cancellations will not be refunded.
A limited number of conference fee waivers is available for applicants facing financial hardship. Applicants for a conference fee waiver are kindly invited to add a short letter of no more than 3 paragraphs to their conference application, stating the reason for their waiver request. Successful applicants will be notified by 30 January 2014.
Subject to space availability, registration of participants not presenting a paper will be accepted. The regular fee will be applied. Please contact firstname.lastname@example.org.
If you should have any (further) questions regarding participation, please feel free to contact email@example.com.
Conference Co-Chairs: Michelle Ratton Sanchez Badin, Vera Thorstensen, Freya Baetens and José Caiado
- Defending the Human Rights of Migrants in the Americas : The Nadège Dorzema et al v Dominican Republic Case
- Introductions / Introductions / Introducciones
- Bernard Duhaime & Christopher Campbell-Duruflé, Introduction
- François Roch & Kristine Plouffe-Malette, Propos introductifs de la Revue québécoise de droit international / Introductory Note from the Quebec Journal of International Law / Comentario Introductorio de la Revista Quebequense de Derecho Internacional
- Mirja Trilsch, Making a Difference - The CIDDHU and the Guayubín Case / Faire une différence - La CIDDHU et l'affaire Guayubín / Haciendo la Diferencia - La CIDDHU y el Caso Guayubín
- Colette Lespinasse, L'affaire Nadège Dorzema et al : Le sens d'une participation comme pétitionnaire
- François Crépeau, Préface du Rapporteur spécial des Nations Unies pour les droits de l’homme des migrants / Foreword from the Special Rapporteur on the Human Rights of Migrants / Prefacio del Relator Especial de las Naciones Unidas sobre los Derechos Humanos de los Migrantes
- Le jugement/ The Decision / La Sentencia Nadège Dorzema y otros vs República Dominicana
- Nadège Dorzema y otros (República Dominicana) (2012), Inter-Am Ct HR (Sér C) n°251 Corte Interamericana de Derechos Humanos
- Amicus curiae
- Consejo Latinoamericano de Estudios del Derecho Internacional y Comparado – República Dominicana (COLADIC-RD)
- The Equal Rights Trust
- Asylum and Human Rights Clinic of Boston University School of Law
- Loyola Law School International Human Rights Clinic
- Instituto de Derechos Humanos « Bartolomé De Las Casas » de la Universidad Carlos III de Madrid
- Analyses / Analysis / Análisis
- Paola Pelletier Quiñones, Análisis de la Sentencia Nadège Dorzema y otros v República Dominicana, Corte Interamericana de Derechos Humanos
- Marie-Pier Dupont & Philippe-André Rodriguez, Learning from the Yean and Bosico Case: Can the Reparation Measures Ordered in the Guayubín Case Really Produce Positive Changes?
- Christopher Campbell-Duruflé, The Right to Juridical Personality of Arbitrarily Detained and Unidentified Migrants after the Case of the Guyaubín Massacre
- Bernard Duhaime & Catherine Lafontaine, Human Rights and Migrations in the Americas: Revisiting the Dorzema et al vs Dominican Republic Case
- Conclusion / Conclusion / Conclusión
- Karla I. Quintana Osuna, Los aportes de la Sentencia de la Masacre de Guyaubín al Sistema Interamericano de Derechos Humanos
The practice of using children to participate in conflict has become a defining characteristic of 21st century warfare and is the most recent addition to the canon of international war crimes. This book follows the development of this crime of recruiting, conscripting or using children for participation in armed conflict, from human rights principle to fully fledged war crime, prosecuted at the International Criminal Court.
The background and reasons for the growing use of children in armed conflict are analysed, before discussing the origins of the crime in international humanitarian law and human rights law treaties, including the Convention on the Rights of the Child and its Optional Protocol. Specific focus is paid to the jurisprudence of the Special Court for Sierra Leone and the International Criminal Court in developing and expanding the elements of the crime, the modes of ascribing liability to perpetrators and the defences of mistake and negligence. The question of how the courts addressed issues of cultural sensitivity, notably in terms of the liability of children, is also addressed.
Le présent ouvrage réunit les principaux experts du droit international humanitaire pour réfléchir sur ses principes fondateurs et leur pertinence dans les conflits armés contemporains. Il propose un état des lieux sur les grandes questions du droit international humanitaire à la lumière de l’évolution récente de la pratique en la matière. L’approche retenue par cette étude se veut à la fois didactique et critique, de manière à mieux comprendre les enjeux contemporains du droit international humanitaire, son évolution et sa portée. L’ouvrage collectif s’articule à cette fin autour de cinq axes essentiels :
- la notion de conflit armé ;
- les nouveaux acteurs des conflits armés ;
- les espaces des conflits armés ;
- les méthodes de combat ;
- la juridictionnalisation du droit des conflits armés.
Wednesday, December 11, 2013
- Harisankar K.S, International Commercial Arbitration in Asia and the Choice of Law Determination
- Walid Ben Hamida, A Fabulous Discovery: The Arbitration Offer under the Organization of Islamic Cooperation Agreement Related to Investment
- Jason Clapham, Recent Trends in Commodities Arbitrations
- Nicholas A. Brown & James D.A. Lewis, Game of Thrones: A Narrowing Immunity?
- Jean-Christophe Honlet, The IBA Guidelines on Party Representation in International Arbitration
- Kartikey Mahajan & Malak Bhatt, Reference of Non-Signatories to Arbitration in Composite Transactions: Did the Indian Supreme Court Get it Right?
- B.Ted Howes & Hannah Banks, A Tale of Two Arbitration Clauses: The Lessons of Oxford Health Plans LLC v. Sutter for the Future of Class-Action Arbitration in the United States
- Focus on Piracy
- Natalino Ronzitti, The Enrica Lexie Incident: Law of the Sea and Immunity of State Officials Issues
- Tullio Treves, The Fight Against Piracy and the Law of the Sea
- Giorgia Bevilacqua, Counter Piracy Armed Services, the Italian System and the Search for Clarity on the Use of Force at Sea
- Simone Vezzani, Prior Exhaustion of Internal Remedies in Cases Involving the International Responsibility of the European Union
- Luigi Crema, Testing Amici Curiae in International Law: Rules and Practice
- Lucas Lixinski, Luci e Ombre: The Bright and Dark Sides of International Heritage Law
- Ilja Richard Pavone, Medically Assisted Procreation and International Human Rights Law
- Notes and Comments
- Fulvio Maria Palombino, Italy’s Compliance with ICJ Decisions vs. Constitutional Guarantees: Does the “Counter-Limits” Doctrine Matter?
- Fulvia Staiano, Domestic Workers’ Human Rights Versus Diplomatic Immunity: Developments in International and National Jurisprudence
Tzanakopoulos: The Solange Argument as a Justification for Disobeying the Security Council in the Kadi Judgments
The Kadi judgments of the courts of the EU have received enormous scholarly attention and have had significant practical impact. And reasonably so: they are landmark decisions, with numerous implications for several crucial issues, from the relationship between different legal orders to the primacy of Security Council decisions, from the required level of protection of fundamental human rights in the application of coercive measures against individuals to the competence of the EU, and so forth. This brief study focuses on one particular aspect of the Kadi decisions: their employment of the Solange argument as a justification for disobeying the Security Council by not implementing its binding decisions.
Crawford: Accountability for Killing: Moral Responsibility for Collateral Damage in America's Post-9/11 Wars
In May 2009, American B-1B bombers dropped 2,000-pound and 500-pound bombs in the village of Garani, Afghanistan following a Taliban attack. The dead included anywhere from twenty five to over one hundred civilians. The U.S. military went into damage control mode, making numerous apologies to the Afghan government and the townspeople. Afterward, the military announced that it would modify its aerial support tactics. This episode was hardly an anomaly. As anyone who has followed the Afghanistan war knows, these types of incidents occur with depressing regularity. Indeed, as Neta Crawford shows in Accountability for Killing, they are intrinsic to the American way of warfare today. While the military has prioritized reducing civilian casualties, it has not come close to eliminating them despite significant progress in recent years, for a very simple reason: American reliance on airpower and, increasingly, drone technology, which is intended to reduce American casualties. Yet the long distance from targets, the power of the explosives, and the frequency of attacks necessarily produces civilian casualties over the course of a long war.
Working from these basic facts, Crawford offers a sophisticated and intellectually powerful analysis of culpability and moral responsibility in war. The dominant paradigm of legal and moral responsibility in war today stresses both intention and individual accountability. Deliberate killing of civilians is outlawed and international law blames individual soldiers and commanders for such killing. But also under international law, civilian killing may be forgiven if it was unintended and incidental to a militarily necessary operation. Given the nature of contemporary war, though, Crawford contends that this argument is no longer satisfactory. As she demonstrates, 'unintended' deaths of civilians are too often dismissed as unavoidable, inevitable, and accidental. Yet essentially, the very law that protects noncombatants from deliberate killing allows unintended killing. An individual soldier may be sentenced life in prison or death for deliberately killing even a small number of civilians, but the large scale killing of dozens or even hundreds of civilians may be forgiven if it was unintentional-'incidental' to a military operation. She focuses on the causes of these many episodes of foreseeable collateral damage and the moral responsibility for them. Why was there so much unintended killing of civilians in the U.S. wars zones in Afghanistan, Iraq and Pakistan? Is 'collateral damage' simply an unavoidable consequence of all wars? Why, when the U.S. military tries so hard to limit collateral damage, does so much of it seem to occur? Trenchant, original, and ranging across security studies, international law, ethics, and international relations, Accountability for Killing will reshape our understanding of the ethics of contemporary war.
Ni Aoláin & Gross: Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective
The Military Commissions scheme established by President George W. Bush in November 2001 has garnered considerable controversy. In parallel with the detention facilities at Guantánamo Bay, Cuba, the creation of military courts has focused significant global attention on the use of such courts to process and try persons suspected of committing terrorist acts or offenses during armed conflict. This book brings together the viewpoints of leading scholars and policy makers on the topic of exceptional courts and military commissions with a series of unique contributions setting out the current 'state of the field'. The book assesses the relationship between such courts and other intersecting and overlapping legal arenas including constitutional law, international law, international human rights law, and international humanitarian law. By examining the comparative patterns, similarities and disjunctions arising from the use of such courts, this book also analyzes the political and legal challenges that the creation and operation of exceptional courts produces both within democratic states and for the international community.
Tuesday, December 10, 2013
With the VCLT, the 2001 ILC Articles, and the practice and judicial decisions applying them firmly in place, with rare exceptions there would be little added value in going back to domestic analogies to derive general principles that could have direct and significant legal impact on the law of treaties. Consequently, the perspective adopted in the chapter has to be necessarily more modest than that adopted by Triepel, Lauterpacht, and McNair in the first third of the last century. It is limited to reflecting upon, rather than deriving legal effects from the comparison of how domestic and international legal orders deal with similar challenges. The admissibility of arguments about analogy depends upon certain assumptions about the nature of domestic and international legal orders. The present chapter is consciously ambivalent about the underlying premises, evaluating the possibilities of comparison of particular rules of the law of treaties and treaty law with particular rules of domestic law from perspectives that are based on different assumptions about the relationship. The chapter will also not define ‘contract,’ ‘statute,’ ‘consideration,’ or other terms denoting particular instruments in domestic law, nor will it engage in any detailed discussion of approaches in particular domestic legal systems. In the contemporary international legal order, positively structured along the lines of the VCLT and the 2001 ILC Articles, it is (no longer) terribly exciting to inquire whether international rules trail the finer print of Roman, English, Soviet, or Chinese law, or Sharia. Such an exercise is in any event unlikely to be very illuminating to a legal inquiry about particular rules and structures. The following debate is instead conducted through loose abstractions of concepts of domestic law, seeking to capture the broadest variety of aspects of international legal reasoning that might be illuminated by typical or even atypical aspects of form and content of domestic legal constructs, without sinking into minutiae of their fine print. The overall thesis is that a tension may exist between analogies from domestic contractual law, derived chiefly from the consensual form of treaties but also the traditional bilateralism and reciprocity of their content, and analogies from types of public law, derived from the increased multilateralism of obligations in the post-War regimes of international law.
- Gráinne de Búrca, Robert O. Keohane & Charles Sabel, New modes of pluralist global governance
- Alan O. Sykes, The Inaugural Robert A. Kindler Professorship of Law Lecture: When is international law useful?
- Andreas F. Lowenfeld, Welcome to Professor Sykes
- Liam Murphy, More than one way to be of use
Dupuy & Chetail: The Roots of International Law / Les fondements du droit international : Liber Amicorum Peter Haggenmacher
This collection of essays gathers contributions from leading international lawyers from different countries, generations and angles with the aim of highlighting the multifaceted history of international law. This volume questions and analyses the origins and foundations of the international legal system. A particular attention is devoted to Hugo Grotius as one of the founding fathers of the law of nations. Several contributions further question the positivist tradition initiated by Vattel and endorsed by scholars of the 19th Century. This immersion in the intellectual origins of international law is enriched by an inquiry into the practice of the law of nations, including its main patterns and changing evolution as well as the role of non-western traditions and the impact of colonization.
Le présent ouvrage réunit les contributions de juristes internationaux reconnus en vue d’éclairer les multiples facettes de l’histoire du droit international public. L’ouvrage analyse et questionne les origines et les fondements de l’ordre juridique international. Une attention toute particulière est dédiée à Hugo Grotius l’un des pères fondateurs du droit international. D’autres contributions questionnent également la tradition positiviste initiée par Vattel et confortée par la doctrine du 19ème siècle. Cette immersion dans les origines doctrinales du système juridique international est enrichie par l’étude de la pratique du droit international public, son évolution ainsi que le rôle des traditions non-occidentales et l’impact de la colonisation.
Academics increasingly characterize international commercial arbitration (ICA) as a form of global governance. However, this literature rarely discusses why ICA should come to provide truly global governance, as opposed to being simply an atomized form of governance derivative of national court litigation — more neutral, more widely enforceable, perhaps faster and cheaper, but essentially the same adjudicative exercise in a different venue. For ICA to constitute global governance, as opposed to merely disconnected resolutions of individual cross-border disputes according to national laws, there are at least two prerequisites. First, legal rules must be formulated at the global level and apply regardless of the nationality and public or private status of the parties. Second, there must be a functional consistency in arbitral decision-making; a consistent adjudicative approach, such that “like cases are treated alike,” is a hallmark of the rule of law. In the radically decentralized ICA system, where there is no central administrative body, no appellate hierarchy, and no common sets of procedural or substantive rules, consistency appears to be a tall order. Can there be global governance without a global governor?
This book chapter argues that the key to understanding ICA’s emergence as global governance is a legal culture specific to the international arbitration community. This culture instills into international arbitration practitioners a normative commitment to establishing international arbitration as a global system of governance for cross-border commercial relationships. It also provides the decisional stability necessary for arbitration to come into its own as a form of legal governance promoting the rule of law. The chapter evaluates “culture” as the basis for a theory of ICA-as-governance, then explains how a common culture can emerge within a heterogeneous, transnational community. Next, it describes the aspects of international arbitration culture that are most relevant to ICA’s development as a form of global governance. In particular, it argues that arbitrators are driven to establish ICA as an autonomous, global system of governance by a shared dedication to internationalism for its own sake and also by a belief that internationalism serves the interests of commercial parties.
Monday, December 9, 2013
Chappell: Conflicting Institutions and the Search for Gender Justice at the International Criminal Court
This article examines the mixed gender justice outcomes of the International Criminal Court’s (ICC) first case, The Prosecutor v. Thomas Lubanga Dyilo, and argues that they were influenced by competing institutions: older gender-biased norms of international law and new formal gender justice rules of the ICC’s Rome Statute. Using a feminist institutionalist framework, the article suggests that formal and informal institutions work together in multiple ways to produce different outcomes, and that in understanding the operation of informal institutions, it is as important to search for silences and inaction, as it is to identify articulation and action.
Schmitt: 'Below the Threshold' Cyber Operations: The Countermeasures Response Option and International Law
The article examines the international law governing State responses to cyber operations that do not rise to the level of an armed attack under the law of self-defense. Once the operations reach that level, forceful responses are, in certain circumstances, permitted. However, it is generally accepted that force, whether kinetic or cyber in nature, may not be employed in response to operations of lesser severity. Instead, the State is limited to acts in retorsion (unfriendly but lawful) or countermeasures. Countermeasures, which comprise acts that would be unlawful but for the unlawful actions of the other State, are subject to significant conditions and limitations. The article examines them in the cyber context.
Chetail: The Legal Personality of Multinational Corporations, State Responsibility and Due Diligence: The Way Forward
This article revisits the accountability of multinational corporations from the perspective of general international law. Such a perspective proves to be much less traditional that it may appear at first sight. On the contrary, innovative approaches may be inferred from general international law in order to ensure accountability of multinational enterprises. This includes basic notions such as legal personality and state responsibility as well as due diligence which represents the most promising avenue in this field.
Call for Papers: L'Empire du crime ? Vers une analyse critique des processus internationaux de criminalisation
- Hugues Fulchiron, Le mariage entre personnes de même sexe en droit international privé au lendemain de la reconnaissance du « mariage pour tous »
- Fanny Cornette, Le « centre des intérêts principaux » des personnes physiques dans le cadre de l'application du Règlement Insolvabilité dans les départements de la Moselle, du Bas-Rhin du Haut-Rhin
- Gaston Kenfack Douajni, L'arbitraqe CCJA comme modèle pour l'élaboration d'un instrument universel en vue d'une meilleure circulation internationale des sentences
Sunday, December 8, 2013
Most of the recent scholarly attention on crimes against humanity has gone to the controversy over whether organizations must be ‘state-like’. But less noticed are other trends in early ICC jurisprudence which, if uncorrected, will impair the viability of the ICC as a forum for crimes against humanity cases. These trends include equating “policy” with “systematic”, requesting proof of formal adoption of policy, and incorporating concepts of ulterior purpose. As a result, some cases have already been faltering despite evidence from which other courts would easily infer policy.
I show the modest purpose of the policy element and how it fits in a theory of crimes against humanity. I show that under national and international authorities, a policy can be inferred from the improbability that the crimes were coincidental individual initiatives. I show that this approach avoids creating an internal contradiction within Article 7. These arguments should resonate with you regardless of your position on the customary law status of the policy element. The ICC must take better cognizance of the purpose of the policy element, national and international authorities, and the structure of Article 7.