- Rolf Lidskog & Göran Sundqvist, When Does Science Matter? International Relations Meets Science and Technology Studies
- Kate J. Neville, The Contentious Political Economy of Biofuels
- Sarah L. Stattman & Aarti Gupta, Negotiating Authority in Global Biofuel Governance: Brazil and the EU in the WTO
- Alex Y. Lo & Michael Howes, Power and Carbon Sovereignty in a Non-Traditional Capitalist State: Discourses of Carbon Trading in China
- Marcel Hanegraaff, Transnational Advocacy over Time: Business and NGO Mobilization at UN Climate Summits
- Diarmuid Torney, Bilateral Climate Cooperation: The EU’s Relations with China and India
Saturday, January 31, 2015
Friday, January 30, 2015
- Doak Bishop, Investor–State Dispute Settlement Under the Transatlantic Trade and Investment Partnership: Have the Negotiations Run Aground?
- Lucy F Reed & James Freda, Maxwell Lecture: After ICCA Singapore, After ICCA Miami: The Next Questions
- Case Comments
- Charles T Kotuby, Jr & James Egerton-Vernon, Apotex Inc v The Government of the United States of America: Will Barriers to Jurisdiction Inhibit an Emerging Trend?
- Romesh Weeramantry & Montse Ferrer, RSM Production Corporation v Saint Lucia: Security for Costs—A New Frontier?
- Charles N Brower & Shashank P Kumar, Investomercial Arbitration: Whence Cometh It? What Is It? Whither Goeth It?
- Berk Demirkol, Enforcement of International Commercial Arbitration Agreements and Awards in Investment Treaty Arbitration
- Lindsay Gastrell & Paul-Jean Le Cannu, Procedural Requirements of ‘Denial-of-Benefits’ Clauses in Investment Treaties: A Review of Arbitral Decisions
- Chiara Giorgetti, Horizontal and Vertical Relationships of International Courts and Tribunals - How Do We Address Their Competing Jurisdiction?
- Annelise P. Karreman & Kanaga Dharmananda, Time to Reassess Remedies for Delays Breaching ‘Effective Means’
- Kendra Magraw, Investor-State Disputes and the Rise of Recourse to State Party Pleadings As Subsequent Agreements or Subsequent Practice under the Vienna Convention on the Law of Treaties
- Rodrigo Polanco Lazo, The No of Tokyo Revisited: Or How Developed Countries Learned to Start Worrying and Love the Calvo Doctrine
- Baiju S Vasani & Shaun A Palmer, Challenge and Disqualification of Arbitrators at ICSID: A New Dawn?
- Federico Campolieti, The Rule of Non-Aggravation of the Dispute in ICSID Arbitration Practice
- Jessica O. Ireton, The Admissibility of Evidence in ICSID Arbitration: Considering the Validity of WikiLeaks Cables as Evidence
- Frauke Nitschke & Kamel Aït-El-Hadj, Determining the Place of Arbitration in ICSID Additional Facility Proceedings
- Wenhua Shan & Lu Wang, The China–EU BIT and the Emerging ‘Global BIT 2.0’
- Hélène Lambert, Comparative Perspectives on Arbitrary Deprivation of Nationality and Refugee Status
- Paul Beaumont, Katarina Trimmings, Lara Walker & Jayne Holliday, Child Abduction: Recent Jurisprudence of the European Court of Human Rights
- Margit Cohn, Non-Statutory Executive Powers: Assessing Global Constitutionalism in a Structural-Institutional Context
- Sujitha Subramanian, The Changing Dynamics of the Global Intellectual Property Legal Order: Emergence of a ‘Network Agenda’?
- Merryl Lawry-White, The Reparative Effect of Truth Seeking in Transitional Justice
- Shorter Articles
- Christian Henderson, The UK Government‘S Legal Opinion on Forcible Measures in Response to the Use of Chemical Weapons by the Syrian Government
- David Kenny & Rosemary Hennigan, Choice-of-Court Agreements, the Italian Torpedo, and the Recast of the Brussels I Regulation
- Shahla F Ali, Crowd-Sourced Governance in a Post-Disaster Context
This book commences with an analysis of the current state of child soldiering internationally. Thereafter the proscriptive content of contemporary norms on the prohibition of the use and recruitment of child soldiers is evaluated, so as to determine whether these norms are capable of better enforcement. An 'issues-based' approach is adopted, in terms of which no specific regime of law, such as international humanitarian law (IHL), is deemed dominant. Instead, universal and regional human rights law, international criminal law and IHL are assessed cumulatively, so as to create a mutually reinforcing web of protection. Ultimately, it is argued that the effective implementation of child soldier prohibitive norms does not require major changes to any entity or functionary engaged in such prevention; rather, it requires the constant reassessment and refinement of all such entities and functionaries, and here, some changes are suggested. International judicial, quasi-judicial and non-judicial entities and functionaries most relevant to child soldier prevention are critically assessed. Ultimately the conclusions reached are assessed in light of a case study on the use and recruitment of child soldiers in the Democratic Republic of the Congo.
Chinkin & Baetens: Sovereignty, Statehood and State Responsibility: Essays in Honour of James Crawford
- Philippe Sands, An Australian in England
- Ivan Shearer, James Crawford: the earlier years
- Susan Marks & Karen Knop, The war against cliché: dispatches from the international legal front
- Michael Byers, International law and the responsibility to protect
- Ralph Wilde, Human rights beyond borders at the World Court
- Margaret Young, Fragmentation, regime interaction and sovereignty
- Lluis Paradell-Trius, The legitimacy of investment treaties: between exit, voice and James Crawford's quest for a more democratic international law
- Don Rothwell, Polar territorial and maritime sovereignty in the twenty-first century
- Keun-Gwan Lee, An enquiry into the palimpsestic nature of territorial sovereignty in East Asia – with particular reference to the Senkaku/Diaoyudao question
- Ole Spiermann, General legal characteristics of states: a view from the past of the Permanent Court of International Justice
- Christine Chinkin, The Security Council and statehood
- Alexander Orakhelashvili, The dynamics of statehood in the practice of international and English courts
- Tom Grant, How to recognise a state (and not): some practical considerations
- Tom Musgrave, An analysis of the 1969 Act of Free Choice in West Papua
- Yael Ronen, Recognition of the State of Palestine: still too much too soon?
- Suzanne Lalonde, The role of the Uti Possidetis Principle in the Resolution of Maritime Boundary Disputes
- Ineta Ziemele, A room for 'state continuity' in international law? A constitutionalist perspective
- Christian Tams, Law-making in complex processes: the World Court and the modern law of state responsibility
- Douglas Guilfoyle, Defending individual ships from pirates: questions of state responsibility and immunity
- Yutaka Arai-Takahashi, Excessive collateral civilian casualties and military necessity: awkward crossroads in international humanitarian law between state responsibility and individual criminal liability
- Martin Dawidowicz, Third-party countermeasures: observations on a controversial concept
- Isabelle Van Damme, The Appellate Body's use of the articles on state responsibility in US – anti-dumping and countervailing duties (China)
- Kate Parlett, The application of the rules on countermeasures in investment claims: visions and realities of international law as an open system
- Damien Geradin, The external relations of the European Union and its Member States: lessons from recent developments in the economic sphere
- Freya Baetens, Invoking, establishing and remedying state responsibility in mixed multi-party disputes: lessons from Eurotunnel
Call for Submissions: The World Trade Organisation
The editors of the International Community Law Review are pleased to announce a call for papers for a special issue of the journal on ‘The World Trade Organisation’.
The International Community Law Review is a peer-reviewed academic journal, published quarterly by Brill/Nijhoff. The journal addresses all aspects of international law and the international community, and aims to explore the implications of various traditions of international law and how the international community uses and adapts international law to deal with new and emerging challenges.
Submissions are invited for the special issue on all aspects of the topic. Areas of interest may include (but are not restricted to):
- The World Trade Organisation (WTO) and the protection of natural resources;
- Standard of review in the context of the International Court of Justice case Whaling in the Antarctic (Australia v. Japan: New Zealand intervening);
- The input of the WTO in the development of the law of treaties, especially in relation to:
- the object and purpose of a treaty;
- systemic integration;
- evolutionary or dynamic interpretation.
All those with an interest in the subject are invited to contribute articles for publication in the special issue. Proposals for papers should be should be no more than 10000 words, and be submitted to the editors by 31st February 2015. Publication is expected in the second quarter of 2016.
For further information please contact Dr Sarah Singer at firstname.lastname@example.org
Thursday, January 29, 2015
As all manner of commerce becomes increasingly global, states must establish laws to protect property rights, human rights, and national security. In many cases, states delegate authority to resolve disputes regarding these laws to an independent court, whose power depends upon its ability to enforce its rulings.
Examining detailed case studies of the International Court of Justice and the transition from the General Agreement on Tariffs and Trade to the World Trade Organization, Leslie Johns finds that a court’s design has nuanced and mixed effects on international cooperation. A strong court is ideal when laws are precise and the court is nested within a political structure like the European Union. Strong courts encourage litigation but make states more likely to comply with agreements when compliance is easy and withdraw from agreements when it is difficult. A weak court is optimal when law is imprecise and states can easily exit agreements with minimal political or economic repercussions. Johns concludes the book with recommendations for promoting cooperation by creating more precise international laws and increasing both delegation and obligation to international courts.
- Dominik Steiger, A Steady Race towards Better Compliance with International Humanitarian Law? The ICTR 1995–2012
- Shahrzad Fouladvand, Complementarity and Cultural Sensitivity: Decision-making by the International Criminal Court Prosecutor in the Darfur Situation
- Hanna Bosdriesz & Sander Wirken, An Imperfect Success – The Guatemalan Genocide Trial and the Struggle against Impunity for International Crimes
- Jacob Childers, Amnesty, Revenge, and the Threat of Conflict Relapse
- Mayeul Hiéramente, Philipp Müller & Emma Ferguson, Barasa, Bribery and Beyond: Offences against the Administration of Justice at the International Criminal Court
- Julia Rutz, The Framework of the Right to Defence in Palestine: Legal Rationale and Practical Implementation
- Jessica M. Kelder, Barbora Holá & Joris van Wijk, Rehabilitation and Early Release of Perpetrators of International Crimes: A Case Study of the ICTY and ICTR
- Special Issue: The Use of Private Military and Security Companies by the United Nations: International Legal Aspects
- Elżbieta Karska & Karol Karski, Introduction: The Use of Private Military and Security Companies by the United Nations
- Mirko Sossai, The Privatisation of ‘the Core Business of UN Peacekeeping Operations’: Any Legal Limit?
- Åse Gilje Østensen, Implementers or Governors?
- Nigel D. White, Peacekeeping, Private Security and International Human Rights Law
- Lou Pingeot, The United Nations Guidelines on the Use of Armed Private Security
- Elke Krahmann, The UN Guidelines on the Use of Armed Guards
In this authoritative work, Emmanuelle Jouannet, a leading French scholar of public international law and legal theory takes a fresh look at the emergence of classical international law and provides an original and decisive reinterpretation. According to the modern and conventional account, Grotius, and his predecessors the Spanish jurists, are credited as the 'fathers' of the modern ius gentium. But this picture of history is now both inaccurate and incomplete. With rare erudition based on an exhaustive analysis of the foundational concepts and principal texts of the great jurists of the period, Jouannet shows that it was only during the 18th century Enlightenment that a genuine doctrine of international law emerged. In particular Jouannet focuses on the work of a Swiss jurist Emerich de Vattel (1714-1767), for long a forgotten figure, showing how his ideas engendered fresh understanding of what international law meant, and stimulated the fundamental debates that international lawyers are still engaged in today. The translation has been prepared under the supervision of Robert Howse, professor of international law at NYU Law School, and the author herself.
Unlawful Combatants brings the study of irregular warfare back into the centre of war studies. The experience of recent and current wars in Afghanistan, Iraq, Libya, and Syria showed that the status and the treatment of irregular fighters is one of the most central and intricate practical problems of contemporary warfare. Yet, the current literature in strategic studies and international relations more broadly does not problematize the dichotomy between the regular and the irregular. Rather, it tends to take it for granted and even reproduces it by depicting irregular warfare as a deviation from the norm of conventional, inter-state warfare. In this context, irregular warfare is often referred to as the 'new wars' and is associated with the erosion of statehood and sovereignty more generally. This obscures the fact that irregulars such as rebels, guerrillas, insurgents and terrorist groups have a far more ambiguous relationship to the state than the dichotomy between the state and 'non-state' actors implies. They often originate from states, are supported by states and/or aspire to statehood themselves.
The ambiguous relationship between irregular fighters and the state is the focus of the book. It explores how the category of the irregular fighter evolved as the conceptual opposite of the regular armed forces, and how this emergence was tied to the evolution of the nation state and its conscripted mass armies at the end of the eighteenth century. It traces the development of the dichotomy of the irregular and the regular, which found its foremost expression in the modern law of armed conflict, into the twenty-first century and provides a critique of the concept of the 'unlawful combatant' as it emerged in the framework of the 'war on terror'.
Although working on the sidelines of armed conflicts, physicians are often at the centre of attention. First Do No harm: Medical Ethics in International Humanitarian Law was born from the occasionally controversial role of physicians in recent armed conflicts and the legal and ethical rules that frame their actions. While international humanitarian, human rights and criminal law provide a framework of rights and obligations that bind physicians in armed conflicts, the reference to ‘medical ethics’ in the laws of armed conflict adds an extra-legal layer. In analysing both the legal and the ethical framework for physicians in armed conflict, the book is invaluable to practitioners and legal scholars alike.
The Goettingen Journal of International Law will dedicate Vol. 7 Issue No. 2 to the protection of the atmosphere in international law.
The atmosphere is our planet’s largest single natural resource and is vital to the survival of humankind and any life on earth. Therefore, the degradation of the atmosphere’s condition has long been a matter of concern to large segments of the international community. In 2013, the United Nation’s International Law Commission (ILC) took up this issue. Several conventions regulate atmospheric and related issues, yet there is still no coherent legal framework addressing the protection of the atmosphere. The work by the ILC will be the first attempt to derive rules from the current practice of States addressing the atmosphere’s protection. However, the work by the ILC is significantly complicated by the restrained scope of the topic, as the Commission deliberately decided not to deal with, inter alia, questions of liability, the polluter-pays principle, and the principle of precaution.
In order to foster and critically accompany the codification and progressive development of the law surrounding the protection of the atmosphere, the Goettingen Journal of International Law, one of Germany’s leading international law publications, will dedicate the second issue of its seventh volume to this topic. The Editors are therefore inviting authors to submit papers on this subject. Submissions from an international law background as well as other disciplines such as international relations, geography, earth sciences, etc. are welcome. Papers will be submitted to a double-blind peer review and should not exceed 15,000 words including footnotes.
The deadline for submissions is the 15th of July 2015. For further information, please contact the Editors at info(at)gojil.eu.
Wednesday, January 28, 2015
- Adam Feibelman, The IMF and Regulation of Cross-Border Capital Flows
- Amnon Lehavi, Unbundling Harmonization: Public versus Private Law Strategies to Globalize Property
- Jocelyn Courtney & Christodoulos Kaoutzanis, Proactive Gatekeepers: The Jurisprudence of the ICC's Pre-Trial Chambers
- Govind Persad, The Medical Cost Pandemic: Why Limiting Access to Cost-Effective Treatments Hurts the Global Poor
- Jordan J. Paust, Can You Hear Me Now? Private Communication, National Security, and the Human Rights Disconnect
- Dov Jacobs, Sitting on the Wall, Looking in: Some Reflections on the Critique of International Criminal Law
- International Law and Practice
- Patrick Dumberry, State Succession to Bilateral Treaties: A Few Observations on the Incoherent and Unjustifiable Solution Adopted for Secession and Dissolution of States under the 1978 Vienna Convention
- Guy Harpaz, When Does a Court Systematically Deviate from its Own Principles? The Adjudication by the Israel Supreme Court of House Demolitions in the Occupied Palestinian Territories
- Stephan Hollenberg, The Security Council's 1267/1989 Targeted Sanctions Regime and the Use of Confidential Information: A Proposal for Decentralization of Review
- Hague International Tribunals: International Court of Justice
- Andreas Kulick, Article 60 ICJ Statute, Interpretation Proceedings, and the Competing Concepts of Res Judicata
- Hague International Tribunals: International Criminal Courts and Tribunals
- Jessica Almovist, A Human Rights Appraisal of the Limits to Judicial Independence for International Criminal Justice
- Astrid Kjeldgaard-Pedersen, What Defines an International Criminal Court?: A Critical Assessment of ‘the Involvement of the International Community’ as a Deciding Factor
- Michail Vagias & Janos Ferencz, Burden and Standard of Proof in Defence Challenges to the Jurisdiction of the International Criminal Court
States are increasingly framing their international investment agreements within larger regional arrangements. What began most prominently with the North American Free Trade Agreement in the 1990s is coming to be emulated across the globe. Over the past ten years, major regional arrangements have been adopted in Asia and Africa and more are on the way. The on-going negotiations for a Trans-Pacific Partnership Agreement (TPP), encompassing countries from Asia, North and South America portend a potentially major shift in the international investment treaty landscape. Moreover, concurrent negotiations between the European Union and the United States for a Transatlantic Trade and Investment Partnership (TTIP) raise the possibility of an agreement on rules and standards between the two largest sources of foreign direct investment.
The regionalization of investment treaty arrangements raises important and timely issues for policy-makers, practitioners and academics. The contributions to this volume examine the contents and character of this new generation of agreements and address the difficult questions raised by the coexistence of regional and bilateral investment treaties. In addition, the contributions in this volume investigate the motivations behind regionalization and critically ask what regionalization tells us about the future of international investment law.
Austerity measures in many European countries have led to the violation of social rights and widespread socio-economic malaise. In the case of countries subjected to conditionality imposed by external institutions for the receipt of loans, the resultant harms have highlighted responsibility gaps across a range of international institutions. Two recent legal developments come together to expose these gaps: Greece's argument in a series of cases under the European Social Charter that it was not responsible for the impact on the right to social security brought about by austerity measures since it was only giving effect to its other international obligations as agreed with the European Commission, the European Central Bank and the International Monetary Fund (the Troika), and the concern to emerge from the Pringle case before the European Court of Justice that European Union institutions could do outside of the EU that which they could not do within the EU – disregard the Charter of Fundamental Rights in the exercise of their tasks. That the Commission and ECB were in time answerable to international organisations set up to provide financial support adds an additional layer of responsibility to consider. Taking Greece as a case study and drawing on EU law, international human rights law, and the law on the international responsibility of states and of international organisations, this article looks to what we can expect in legal terms and as a matter of contemporary societal expectation when it comes to having international institutions respect human rights.
How does the publicity of states’ illicit activities affect the stability of international order? What does this tell us about when enforcers of international rules publicize these states’ violations? In contrast to the conventional wisdom that transparency strengthens the normative-legal order, this paper argues that transparency often undermines it. We develop two mechanisms through which this occurs: by raising the known rate of non-compliance, and by sharpening the threat to others posed by deviance. These considerations lead enforcers of international rules to selectively publicize transgressions. Focusing on the nuclear non-proliferation domain, we demonstrate that these concerns factored heavily into American decisions to reveal or obfuscate other states’ efforts to obtain nuclear weapons. We formalize this argument and then empirically test the model’s predictions using in-depth case study analyses. We find that the U.S. failed to disclose infractions precisely when this publicity would have undermined the rules through the two mechanisms we identify.
Tuesday, January 27, 2015
Call for Papers: 15th BIICL WTO Conference
The Annual WTO Conference was originally established in 2000 through a partnership between the British Institute of International and Comparative Law (BIICL) and the Institute of International Economic Law (IIEL) at the Georgetown University Law Center, and is currently organised jointly by BIICL, IIEL, and the Society of International Economic Law (SIEL). As originally established by University Professor John H. Jackson of Georgetown, and Professor Sir Francis Jacobs, KCMG, QC, a Trustee of BIICL, the Annual WTO Conference has a longstanding affiliation with the Journal of International Economic Law, published by the Oxford University Press. The Annual WTO Conference is one of the most important and prestigious conferences addressing developments in international trade law, pursuing cutting-edge issues of interest to academics and practitioners alike.
The Annual WTO Conference has traditionally selected speakers by invitation only; this year, however, the organisers have decided to conduct a call for papers aimed at opening opportunities for younger scholars to present their research and analysis at the conference. The organizers will consider proposals, in the form of an abstract or a completed short paper, submitted on or before 28 February 2015, for inclusion on the panels being organised on the following six topics:
For further information, view the full call for papers document.
- The Revival of Export Controls and Trade Sanctions: The Russia-Ukraine Conflict and Beyond
- WTO Accession Protocols and Other Non-Treaty WTO Instruments or Texts: Legal Status and Interpretation in WTO Dispute Settlement
- Restoring the Negotiating Function of the WTO: Are there Alternatives to the Single-Speed, Single Undertaking Approach?
- Measures Pursuing Multiple Policy Objectives: The Scope of Application and Overlapping Disciplines in GATT-TBT-SPS After Seals
- The "Plain Packaging" Public Health Strategy: Tobacco Products, Alcohol, Sugary Products: What Role (If Any) For the WTO?
- Recent Developments in WTO Dispute Settlement Procedure & Jurisprudence
How do EU law and international law interact? Is the relationship between EU law and international law different from the relationship between general international law and one of its specialised legal orders, for example the relationship between international law and the law of the sea? In other words, is the question of the relationship only one about the fragmentation of international law? Are the rules of interaction between the legal orders just ‘technical’ conflict rules in this context? Or are the rules of interaction between the international and the EU legal order which has been described as an autonomous legal order, akin to rules that govern the interaction between international law and national legal orders? Elements of both the international and the constitutional paradigms are reflected in most areas of EU law. But they are particularly prominent when analysing the relationship between international and EU law, a topic that has enjoyed increasing attention in recent years. In this paper, firstly, the more formal basis for the relationship is considered by looking at the international law framework of EU law before, secondly, looking at the relationship between the two legal orders and the realities of the relationship as expressed in the status of international law within the EU legal order.
Dezalay & Garth: Constructing a Transatlantic Marketplace of Disputes on the Symbolic Foundations of International Justice
This chapter revisits earlier work by the authors on international commercial arbitration. Drawing on new historical research, it suggests that the enduring success and legitimacy of the International Chamber of Commerce and international commercial arbitration relates to the type of alliances that European professors early in the twentieth century built with American lawyers -- who themselves had built strong connections with the U.S. state and with major commercial interests. The article first presents in broad terms the strategies of internationalization (including the import and export of norms and institutions) that elite corporate lawyers sought in order to build their position through the accumulation of international legal capital built in alliance with European law professors. These strategies of internationalization played a decisive role in building international justice as a hybrid system between common and civil law around a core of legal scholars/diplomats including learned Queens Counsel and continental law professors. Second, the chapter examines how the ICC Court of International Commercial Arbitration was established in the shadow of the Permanent Court of International Justice by borrowing its public visibility and the academic legitimacy of international law. The European professors who benefitted from the establishment of the Permanent Court and related institutions in The Hague were initially relatively peripheral to the ICC, because the ICC itself was relatively marginal in the interwar period. Yet a few of them extended their academic interest to issues of private law and international disputes. Third, when European law professors were given the opportunity to intervene in commercial disputes involving oil companies, after the tide of nationalistic fights over the appropriation of profits of the oil industry, they could use the value of the symbolic foundations of international justice, as well as their early academic investment, reinvigorated through a small diaspora of continental law professors with links to both the ICC and the American Arbitration Association, such as Martin Domke. Serving as arbitrators and scholars, they could apply and codify their doctrines and gain the recognition of international commercial arbitration as quasi-autonomous from economic and political interests.
- Andrea Ott, The EU-Turkey Association and Other EU Parallel Legal Orders in the European Legal Space
- Ceren Zeynep Pirim, The EU-Turkey Customs Union: From a Transitional to a Definitive Framework?
- Katherine Connolly, Finding Space for Regulatory Autonomy in GATS Article XVII after EC – Seals: Public Services and the ‘Likeness’ of Public and Private Service Providers
Monday, January 26, 2015
- Wolfgang Aryeh Neier, Friedmann Memorial Award Address
- Jarrod Wong, The Subversion of State-to-State Investment Treaty Arbitration
- Chiara Giorgetti, Using International Law in Somalia’s Post-Conflict Reconstruction
- Richard C. Gross, Lieber Series – Lieber Conference Keynote Address
- Bruce Oswald, Lieber Series – The Harmonization Project: Improving Compliance with the Law of War in Non-International Armed Conflicts
This paper addresses the foundational logics of the UN Guiding Principles on Business and Human Rights, and comments on the recent decision by the UN Human Rights Council to commence treaty negotiations on this subject. As the author of the Guiding Principles, the paper reiterates the important contributions of Amartya Sen to my understanding of human rights. Sen insists that human rights are much more than laws’ antecedents or progeny. Indeed, he states, such a view threatens to “incarcerate” the social logics and processes other than law that drive public recognition of rights. My work, including the Guiding Principles, has sought to contribute to the freeing of human rights discourse and practice from these conceptual shackles, by drawing on the interests, capacities and engagement of states, market actors, civil society, and the intrinsic power of ideational and normative factors. Moreover, now that negotiations on an international legal instrument are about to commence, my sole concerns are that they build on what has already been achieved, not undermine it; and that the effort be meaningful and actionable where it matters most: not in legal treatises, journals of ethics, or the mesmerizing effects that the word “binding” has on the critical faculties of many committed activists, but in the daily lives of people — and not in some far-off promised future that may or may not ever materialize, but starting in the here and now.
- Giesela Rühl, The Protection of Weaker Parties in the Private International Law of the European Union: A Portrait of Inconsistency and Conceptual Truancy
- Mihail Danov & Florian Becker, Governance Aspects of Cross-Border EU Competition Actions: Theoretical and Practical Challenges
- Elisa Torralba-Mendiola & Elena Rodríguez-Pineau, Two's Company, Three's a Crowd: Jurisdiction, Recognition and Res Judicata in the European Union
- Lutz-Christian Wolff, Flexible Choice-of-Law Rules: Panacea or Oxymoron?
- Lena-Maria Möller, No Fear of Talāq: A Reconsideration of Muslim Divorce Laws in Light of the Rome III Regulation
- Markus Petsche, The Application of Transnational Law (Lex Mercatoria) by Domestic Courts
- Chukwuma Samuel Adesina Okoli, Sowing the Seeds of a Future African Union Private International Law: A Review of Private International Law in Commonwealth Africa
This Article uses a rational choice analysis to simplify the increasingly complex area of international financial regulation. It proceeds by identifying four “interdependence problems” relating to harmonization of financial standards, capital requirements, bank resolution procedures, and an international lender of last resort — in which the globalization of finance creates potential benefits from regulatory cooperation between countries. It finds that interdependence problems that relate to the efficiency gains made available by cross-border financial integration are more amenable to international regulation than are efforts to reduce losses from financial instability, which will likely continue to be ineffective despite active reforms in response to the global financial crisis.
A policy implication is that ambitious proposals for a legal body to centrally administer international financial regulation are unlikely to succeed, because they misstate the underlying dynamics of the interdependence problems that are specific to international finance. Instead, this Article argues that certain incremental reforms, such as international harmonization of bank resolution plans and provision of a regional lenders of last resort, provide a more promising avenue for reform.
This Article constitutes a reframing of the literature on international financial regulation, because it seeks to show that a state-centered rational choice approach can provide greater clarity and explanatory power than competing scholarship that commonly incorporates more complicated variables. In particular, the Article argues that the influential literatures on “transgovernmental networks” of regulators and the international “soft law” that they create overstate both the extent and efficacy of these mechanisms for international cooperation on finance and international law generally.
- Franco Frattini, Settantesimo Anniversario della Società Italiana per L’organizzazione Internazionale
- Articoli e Saggi
- Francesco Seatzu & Paolo Vargiu, Bilateralism, Multilateralism and the Quest for a Multilateral Investment Agreement for Sub-Saharan African Countries
- Osservatorio Diritti Umani
- Ivan Ingravallo, La tutela internazionale dei minori dopo l’entrata in vigore del Terzo Protocollo Opzionale alla Convenzione del 1989
- Note e Commenti
- Eugenio Carli, Immunità dei consoli e dei rappresentanti presso le Nazioni Unite: considerazioni a margine del caso Khobragade
- Monica Del Vecchio & Valeria Di Comite, Da Doha a Bali: il futuro dell’OMC tra nuove speranze e antiche questioni
Sunday, January 25, 2015
Tzevelekos: Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches
The paper discusses the rather thorny question of extraterritoriality in human rights protection and the effective control criterion developed by the European Court of Human Rights with a view to delimit territorially the ambit of human right obligations. By first deconstructing, and then reconstructing, the effective control doctrine, the paper defends the universalist nature of human rights protection. At the same time, it explains why and how extraterritoriality in human rights protection may lead to concurrent responsibilities on the part of multiple states for the same wrongful situation or result. Through this, the Article maps the role of effectiveness in the exercised control in extraterritorial human rights protection and develops a model for concurrent state responsibility. Considering more broadly effectiveness, the study finally argues that, next to the classic legal bases, effectiveness too may activate due diligence obligations requiring a state that is effectively linked to a wrongful situation to be proactive and protective.
The analytical basis of the Article is the distinction it makes between directly attributable wrongfulness, that is, wrongfulness caused by the state (negative human rights obligations), and responsibility for lack of diligence, that is, for failure to apply in human rights protection the positive measures that are necessary and available to the state so that it prevents or remedies wrongfulness (positive human rights obligations).
The first major argument of the study concerns the famous criterion of effective control in extraterritoriality. This part argues that, in the case of direct attribution, a state shall be responsible every time wrongful conduct is attributable to it, without regard to whether wrongfulness is taking place within or outside its national territory. The only task effective control may be called to carry out in that case is to serve as a criterion for attribution, in conformity with the norms of the International Law Commission on state responsibility. However, in the case of extraterritorial wrongfulness for breach of the principle of due diligence, effective control does have a role to play. Effectiveness is one element among many to be taken into consideration when assessing the standards of diligence a state can — and therefore is legally obliged to — demonstrate. Because due diligence is an obligation of means, its standards are flexible and subjective in that they depend on the particular circumstances of each distinctive case.
The paper’s second primary argument relates to concurrent state responsibility. In the context of the study, concurrent responsibility is the idea that more than one states will be concurrently responsible for a single wrongful result, owing to the combination of a directly attributable to a state wrongful act that causes the result, and to the failure of one or more other states to fight that wrongful result — amounting to a breach on behalf of the second category of states of the principle of due diligence — that had been directly caused by another state or, more generally, another subject of international law or even a general situation that cannot be attributed to a particular person. Directly attributable wrongfulness and responsibility for lack of diligence interact in a complementary way, leading to the concurrent responsibility of more than one state for the same wrongful result or situation. One wrongful result, severability of the breaches of the primary obligations by several, respectively, states; this is in a nutshell the concept of concurrent responsibility. In principle, one (or more) states will be objectively responsible because of directly breaking the law, whereas, more other states may be subjectively responsible because of their failure to fight the wrongful result that has directly been caused by the former state. The model of concurrent state responsibility identified in the paper may find application in a variety of scenarios and situations that extend beyond human rights.
Finally, the paper attempts to chart the role of effective control, and effectiveness more generally. In addition to serving as a criterion for direct attribution (a de facto organ) in the frame of state responsibility, and as an element in determining the standards of due diligence a state must demonstrate, effectiveness has a third dimension. This dimension stems from the maxim of ex facto oritur jus (the law arises from the facts). The law arises from the facts, and reality may generate legal obligations. The existence of any type of nexus, either legal or factual, between a state and a given wrongful situation expands that state’s sphere of jurisdiction and requires it to actively fight wrongfulness–to the extent, of course, that this is possible to it, and as long as the means it chooses in that end are lawful.