While the rule of law is the cornerstone of the international legal order, the analysis of intergovernmental instruments, statements made by States, and negotiation records, indicates that within the UN the rule of law has grown increasingly contested in the past years, culminating at the post-2015 process leading to the Sustainable Development Goals (SDGs). This research article, first, sets out the background of the rule of law debate at the UN, followed by analysis of the rule of law elements in the 2030 Agenda, and finally, explores whether the rule of law is a universal concept that carries normative authority, in particular within the SDGs framework. Reflections drawn from the post-2015 process illustrate that the rule of law - or at least the “thick” understanding of the concept - is in decline in institutional and normative contexts. Simultaneously with the broadening of the rule of law - with more substance and interpretations attached to it - its normative specificity is being diluted, which creates uncertainty and disagreement among States on its core content. This conceptual weakness impacts also the implementation of the rule of law elements in the 2030 Agenda, and can be perceived as symptomatic of a broader crisis of the international legal order.
Saturday, November 25, 2017
Not all international nongovernmental organizations (INGOs) are created equal, Some have emerged as "leading INGOs" that command deference from various powerful audiences and are well-positioned to influence the practices of states, corporations, and other INGOs. Yet Sarah S. Stroup and Wendy H. Wong make a strong case for the tenuous nature of this position: in order to retain their authority, INGOs such as Greenpeace, Oxfam, and Amnesty International refrain from expressing radical opinions that severely damage their long-term reputation. Stroup and Wong contend such INGOs must constantly adjust their behavior to maintain a delicate equilibrium that preserves their status.
Activists, scholars, and students seeking to understand how international organizations garner and conserve power—and how this affects their ability to fulfill their stated missions—will find much of value in The Authority Trap. The authors use case studies that illuminate how INGOs are received by three main audiences: NGO peers, state policymakers, and corporations. In the end, the authors argue, the more authority an INGO has, the more constrained is its ability to affect the conduct of world politics.
- Special Section: Authority Building in Internationally Administered Territories
- Thorsten Bonacker & André Brodocz, Introduction: Authority Building in International Administered Territories
- Dominik Zaum, International Transitional Administrations and the Politics of Authority Building
- Werner Distler, The Authority–Identity Relation: Symbolic References and Interpretative Authority in Postwar Kosovo
- Katrin Travouillon, Moderator or Manipulator? How International–Local Relations Emerged as a Function of UN Authority-Building in Cambodia
- Nicolas Lemay-Hébert, Exploring the Effective Authority of International Administrations from the League of Nations to the United Nations
- Barbara F. Walter, The Extremist's Advantage in Civil Wars
- Nicholas L. Miller, Why Nuclear Energy Programs Rarely Lead to Proliferation
- Michael Beckley, The Emerging Military Balance in East Asia: How China's Neighbors Can Check Chinese Naval Expansion
- Amanda J. Rothschild, Rousing a Response: When the United States Changes Policy toward Mass Killing
- Kevin Narizny, On Systemic Paradigms and Domestic Politics: A Critique of the Newest Realism
- Michael Poznansky, Alexander B. Downes, & Lindsey A. O'Rourke, Friends, Foes, and Foreign-Imposed Regime Change
- Richard J. Harknett & Joseph S. Nye Jr., Is Deterrence Possible in Cyberspace?
On August 21, 2013, chemical weapons were unleashed on the civilian population in Syria, killing another 1,400 people in a civil war that had already claimed the lives of more than 140,000. As is all too often the case, the innocent found themselves victims of a violent struggle for political power. Such events are why human rights activists have long pressed for institutions such as the International Criminal Court (ICC) to investigate and prosecute some of the world's most severe crimes: genocide, war crimes, and crimes against humanity.
While proponents extol the creation of the ICC as a transformative victory for principles of international humanitarian law, critics have often characterized it as either irrelevant or dangerous in a world dominated by power politics. Christopher Rudolph argues in Power and Principle that both perspectives are extreme. In contrast to prevailing scholarship, he shows how the interplay between power politics and international humanitarian law have shaped the institutional development of international criminal courts from Nuremberg to the ICC. Rudolph identifies the factors that drove the creation of international criminal courts, explains the politics behind their institutional design, and investigates the behavior of the ICC. Through the development and empirical testing of several theoretical frameworks, Power and Principle helps us better understand the factors that resulted in the emergence of international criminal courts and helps us determine the broader implications of their presence in society.
This is the text of my Morelli Lectures delivered at the University of Rome in June of 2016. In these lectures, I advance two theses. Firstly, the legal analysis of the international investment law should focus not on treaties, rules or cases, but on certain ‘stances’ or ‘positions’ that are important – perhaps the most important – ‘micro drivers’ of the dynamics of the entire investment law system. Secondly, these stances should be analysed in the light of their implications not only for investment proceedings or even the overall relation between foreign investors and host States but as one part of a larger context, involving other stakeholders, values and legal systems.
An unprecedented new international moral and legal rule forbids one state from hosting money stolen by the leaders of another state. The aim is to counter grand corruption or kleptocracy ("rule by thieves"), when leaders of poorer countries—such as Marcos in the Philippines, Mobutu in the Congo, and more recently those overthrown in revolutions in the Arab world and Ukraine—loot billions of dollars at the expense of their own citizens. This money tends to end up hosted in rich countries. These host states now have a duty to block, trace, freeze, and seize these illicit funds and hand them back to the countries from which they were stolen. In The Despot's Guide to Wealth Management, J. C. Sharman asks how this anti-kleptocracy regime came about, how well it is working, and how it could work better. Although there have been some real achievements, the international campaign against grand corruption has run into major obstacles. The vested interests of banks, lawyers, and even law enforcement often favor turning a blind eye to foreign corruption proceeds. Recovering and returning looted assets is a long, complicated, and expensive process.
Sharman used a private investigator, participated in and observed anti-corruption policy, and conducted more than a hundred interviews with key players. He also draws on various journalistic exposés, whistle-blower accounts, and government investigations to inform his comparison of the anti-kleptocracy records of the United States, Britain, Switzerland, and Australia. Sharman calls for better policing, preventative measures, and use of gatekeepers like bankers, lawyers, and real estate agents. He also recommends giving nongovernmental organizations and for-profit firms more scope to independently investigate corruption and seize stolen assets.
This paper returns to the last decade of scholarly reflections on the question of non-state actors and customary international law and revisits some of the specific argumentative constructions and presuppositions that have informed — and continue to inform — discourses on the contribution of non-state actors and international law. This paper is specifically premised on the idea that international legal thought and practice on non-state actors and customary international law have remained chained by certain modes of reasoning and category of thoughts which have been precluding any renewal of scholarly reflection on the matter. It is submitted in this paper that, in order to make a chance of novelty and creative thinking, any new wave of scholarly reflections on the contribution of non-state actors to custom-forming processes must reinvent the very categories around which international legal discourses are currently articulated. It is argued here that three tropes have been mechanically repeated in previous rounds of scholarly debates on non-state actors and customary law and must be confronted for scholarly reflections to have any potential to generate new insights.
These constructions can be summarised as follows:
- The idea that the two-element variant of the doctrine of customary international law originates in article 38 of the Statute of the Permanent Court of International Justice (hereafter the PCIJ);
- The continuous attachment of international lawyers — including the ILC — to the distinction between practice and opinio juris; and
- The understanding of the concept of non-state actors as a plain and innocent descriptive category.
- Oliviero Angeli, Global constitutionalism and constitutional imagination
- Alec Stone Sweet & Eric Palmer, A Kantian system of constitutional justice: Rights, trusteeship, balancing
- Claudio Corradetti, Constructivism in cosmopolitan law: Kant’s right to visit
- John D Feldmann, The avoidance of monetary system conflict: A role for recognition theory in reconstituting the global monetary system
- William Smith, Civil disobedience as transnational disruption
Advances in the legalisation of international relations, and the growing number of international organisations raise the question whether state sovereignty had its day. The paper defines sovereignty in a way that allows for degrees of sovereignty. Its analysis assumes that while sovereignty has become more limited, a trend which may continue, there is no sign that it is likely to disappear. The paper offers thoughts towards a normative analysis of these developments and the prospects they offer. Advocates of progress towards world government, while wise to many of current defects, are blind to the evils that a world government will breed, and to the advantages of relatively sovereign political societies. The paper identifies the advantages of the legalisation of international relations, and the growth of international bodies. The dilemma of internationalisation is that its advantages can be obtained only if international organs acquire some of the characteristics of successful sovereign political societies, in attracting the loyalty and shaping the sense of identity of their members – a faraway prospect. The best we can hope for is a mix international regime of relatively sovereign states subject to extensive regulation by international organisations and laws. That requires a pluralistic jurisprudence of international organisations, allowing for great local diversity, of which we have so far seen only small beginnings.
- Melik Özden, Las normas aplicables a las empresas transnacionales en el marco del Derecho Internacional
- Daniel Maurício de Aragão, Controvérsias da política mundial em Direitos Humanos: o contexto em que se discute o tratado sobre corporações transnacionais
- Esteban Iglesias, Los movimientos sociales en América Latina contemporánea: los alcances de su protagonismo político
- Juan Hernández Zubizarreta, Pedro Ramiro, & Erika González, Las Naciones Unidas y el tratado vinculante sobre empresas transnacionales y Derechos Humanos. Un análisis desde los movimientos sociales
- Luis Espinosa Salas, The way ahead for the treaty process on transnational corporations with respect to human rights
- Leigh A. Payne, Gabriel Pereira, Josefina Doz Costa, & Laura Bernal-Bermúdez, Can a Treaty on Business and Human Rights help Achieve Transitional Justice Goals?
- Pedro Villardi & Felipe Fonseca, Acesso a medicamentos e patentes farmacêuticas: a luta da sociedade civil pelo direito à saúde frente às corporações farmacêuticas transnacionais
- Julio Prieto Mendez & Gabriela Espinoza Plua, A binding treaty on corporate responsability: a global solution to address the problem of corporate impunity – Lessons learned from Aguinda vc Chevron
- Denise de Castro Pereira, Emilene Kareline Marciano dos Santos, & Patrícia Generoso Thomaz Guerra, Desenvolvimento, mineração e comunidades atingidas: a face visível dos conflitos socioambientais
- Felipe Rodrigues Siston, Práticas de transparência do financiamento ao desenvolvimento nas Américas: BNDES, BID e Banco Mundial
- Linda C Reif, The UN Guiding Principles on Business and Human Rights and Networked Governance: Improving the Role of Human Rights Ombudsman Institutions as National Remedies
- Gauthier de Beco, Protecting the Invisible: An Intersectional Approach to International Human Rights Law
- Robert Spano, Intermediary Liability for Online User Comments under the European Convention on Human Rights
- Neil Graffin, Gäfgen v Germany, the Use of Threats and the Punishment of Those Who Ill-treat During Police Questioning: A Reply to Steven Greer
- Valentina Milano, The European Court of Human Rights’ Case Law on Human Trafficking in Light of L.E. v Greece: A Disturbing Setback?
- Jaclyn L Neo, Realizing the Right to Freedom of Thought, Conscience and Religion: The Limited Normative Force of the ASEAN Human Rights Declaration
- Rosa Freedman & Ruth Houghton, Two Steps Forward, One Step Back: Politicisation of the Human Rights Council
- Ka Lok Yip, The Weakest Link: From Non-Derogation to Non-Existence of Human Rights
- Mark Bell, Leaving Religion at the Door? The European Court of Justice and Religious Symbols in the Workplace
- Harmen van der Wilt, Legal responses to transnational and international crimes: towards an integrative approach?
- Neil Boister, Responding to transnational crime: the distinguishing features of transnational criminal law
- Héctor Olásolo, Is international criminal law an appropriate mechanism to deal with organised crime in a global society?
- Marta Bo, Piracy at the intersection between international and national: regional enforcement of a transnational crime
- I.L. Braber, Terrorism as a new generation transnational crime: prosecuting terrorism at the International Criminal Court
- Alejandro Chehtman, Terrorism and the conceptual divide between international and transnational criminal law
- Ilias Bantekas, Cybercrime and its sovereign spaces: an international law perspective
- Nicolò Bussolati, Domestic and international legal approaches to the repression of politically-motivated cyber attacks
- Giulio Nessi, Transnational prosecution of grand corruption and its discontent
- D.J. van Leeuwen, Prosecuting money laundering at the ICC: can it stop the funding of international criminal organisations?
- M.L. Ferioli, Safeguarding defendants’ rights in transnational and international cooperation
- Sabine Gless, Ne bis in idem in an international and transnational criminal justice perspective — paving the way for an individual right?
- S.J. Wirken & H. Bosdriesz, Privatisation and increasing complexity of mass violence in Mexico and Central America: exploring appropriate international responses
- Charles Chernor Jalloh, The distinction between ‘international’ and ‘transnational’ crimes in the African Criminal Court
Friday, November 24, 2017
Thursday, November 23, 2017
Wednesday, November 22, 2017
- Michael Byers & Andreas Østhagen, Why Does Canada Have So Many Unresolved Maritime Boundary Disputes?
- Robert J. Currie, Cross-Border Evidence Gathering in Transnational Criminal Investigation: Is the Microsoft Ireland Case the “Next Frontier”?
- Pallavi Kishore, A Critical Analysis of Conditionalities in the Generalized System of Preferences
- Craig Forcese & Leah West Sherriff, Killing Citizens: Core Legal Dilemmas in the Targeted Killing Abroad of Canadian Foreign Fighters
- Émile Ouédraogo, Le “nettoyage ethnique” en droit international
- Chilenye Nwapi, Accountability of Canadian Mining Corporations for Their Overseas Conduct: Can Extraterritorial Corporate Criminal Prosecution Come to the Rescue?
- Kirsten Stefanik, Rise of the Corporation and Corporate Social Responsibility: The Case for Corporate Customary International Law
- Notes and Comments
- Sharon A. Williams (1951–2016)
- Elsa Sardinha, Towards a New Horizon in Investor–State Dispute Settlement? Reflections on the Investment Tribunal System in the Comprehensive Economic Trade Agreement (CETA)
- Ali Tejpar & Steven J. Hoffman, Canada’s Violation of International Law during the 2014–16 Ebola Outbreak
Tuesday, November 21, 2017
Various legal approaches have been taken internationally to improve global access to essential medicines for people in developing countries. This book focuses on the millions of people suffering from AIDS, tuberculosis and malaria. Beginning with the AIDS campaign for antiretroviral (ARV) drugs, Sharifah Sekalala argues that a soft law approach is more effective than hard law by critiquing the current TRIPS flexibilities within the World Trade Organization. She then considers how soft law has also been instrumental in the fight against malaria and tuberculosis. Using these compelling case studies, this book explores lawmaking on global health and analyses the viability of current global health financing trends within new and traditional organisations such as the United Nations, the World Health Organization, UNAIDS, UNITAID and The Global Fund. This book is essential reading for legal, development, policy and health scholars, activists and policymakers working across political economy, policy studies and global health studies.
de Wet: Complicity in the Violations of Human Rights and Humanitarian Law by Incumbent Governments Through Direct Military Assistance on Request
The article examines whether general international law supports the claim that direct military assistance by one State to another State upon the latter’s request is prohibited where the inviting State is implicated in (gross) violations of international humanitarian and/or human rights law. It approaches the question from the perspective of State responsibility, analyzing the threshold requirements of article 16 of the Articles on State Responsibility (ASR), which represents the customary international law standard for responsibility for aiding or assisting wrongful conduct by another State. In so doing, the article illuminates how factual uncertainties complicate the triggering of the responsibility of the intervening (assisting) State for any violations of international humanitarian and/or human rights law by the territorial (recipient) State. Thereafter, the article questions whether, in the event that the responsibility of the intervening State is triggered, it would in consequence have to withdraw its troops and/or military air power from the territorial State.
Perrone: UNCTAD's World Investment Reports 1991-2015: 25 Years of Narratives Justifying and Balancing Foreign Investor Rights
This article examines an influential narrative of foreign investor rights and the international investment regime. It draws on twenty five of the World Investment Reports (WIRs) issued by the United Nations Conference on Trade and Development (1991-2015). It argues that the justifications provided by these reports have contributed to shaping a global commodity conception of property. These WIRs describe foreign investor rights following a narrative of wealth maximisation by transnational corporations (TNCs), and focus on a TNC-assisted restructuring of host states and local communities. Since the mid-2000s, these reports have balanced this narrative because of the increasing consensus that international investment treaties unduly constrain regulatory space. Ultimately, however, this article shows that the recent WIRs promote an approach to public regulation that is not inconsistent with a global commodity conception of property.
Article 2 of the European Convention on Human Rights (ECHR) in its current form is incomplete and outdated. Due to significant development at a legislative and judicial level, the right to life spans beyond what is enumerated within Article 2. With the belief that Article 2 is still relevant, this book investigates how the right to life can be better protected within Europe. It advocates for the modernisation of Article 2 through codifying legislative and judicial developments relevant to this provision in the form of guidelines. It also considers the improvements that can be made by the Council of Europe (CoE) bodies – the European Court of Human Rights (ECtHR), the Committee of Ministers (CoM), the Parliamentary Assembly of the Council of Europe (PACE) and the CoE Commissioner for Human Rights – to encourage adherence to Article 2 and promote effective remedies to prevent future violations. It uses the experience from four internal European conflicts – the Basque conflict, the Chechen conflict, the Northern Ireland Troubles and the Turkish-Kurdish conflict – to illustrate its points.
Sivakumaran: Techniques in International Law-Making: Extrapolation, Analogy, Form and the Emergence of an International Law of Disaster Relief
This article traces the emergence of an international law of disaster relief from a patchwork of norms through to a holistic body of international law. It argues that, for many years, the international law of disaster relief existed in piecemeal fashion. Since there is no overarching treaty on the subject at the global level, a hodgepodge of instruments have been concluded, namely subject-specific and disaster-specific treaties at the global level, regional and sub-regional agreements, bilateral agreements as well as soft law. However, through the work of the International Law Commission and the International Federation of the Red Cross and Red Crescent, a holistic body of international law relating to disaster relief is in the process of emerging. This article argues that this holistic body is in the process of emerging primarily as a result of three techniques that, while unconventional, are used relatively frequently in the making of international law. The three techniques are: (i) extrapolation from a series of piecemeal instruments to form a generalized standard; (ii) the use of analogy and (iii) the conclusion of instruments that are soft in form but contain a mixture of hard law and soft law. The way in which the techniques have been used to develop a body of international law relating to disaster relief is analysed, their use in other fields of international law discussed and limitations on their use in the disaster law context identified.
Monday, November 20, 2017
- Katrin Kuhlmann & Tvisha Shroff, A Legal Perspective On Digital Trade: Keeping The Internet Neutral
- Aoife O'Donoghue & Konstantina Tzouvala, TTIP: The Rise of ‘Mega-Market’ Trade Agreements and Its Potential Implications For The Global South
- Jedrzej Gorski, The Impact Of The TPP On Opening Government Procurement to International Competition in the Asia-Pacific Region
- Amrita Bahri, Public Private Partnership: Enabling India’s Participation at WTO Dispute Settlement Mechanism
- Notes and Comments
- Dimitriy Skougarevskiy & Wolfgang Alschner, Convergence and Divergence in the Investment Treaty Universe - Scoping the Potential for Multilateral Consolidation
In a classic sense, ‘impunity’ means freedom from punishment for one’s harmful acts. Etymologically, the term springs from impunité in Middle French, which in turn derives from the Latin impune (in[not] + poena [punishment, pain]) originally the ancient Greek poine [penalty]. Poena, the spirit of punishment in Roman mythology, attends to Nemesis, the goddess of retribution.
Impunity is a theme that has suffused literature, fables, and art throughout the ages; and in modern times impunity surfaces as among the concerns of the global human rights movement. Within this context, ‘fighting impunity’ for acts of atrocity arises as among the reasons driving the establishment of international criminal courts and tribunals.
Since impunity means freedom from punishment, any conversation about impunity must involve a discussion of poena. How to punish and what does punishment mean? This Chapter undertakes a rapid-fire discourse analysis of press releases from international criminal courts and tribunals, specifically the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), so as to impressionistically gauge how these institutions understand poena. While these press releases and other documents gesture towards a multiplicity of venues that can help fight impunity, they also underscore the central, and I would argue primary, place of courtrooms and jailhouses in the imposition of punishment and, therefore, in the fight against impunity. This fight, then, consolidates the courtroom, trial, and jailhouse as a synergized best practice and thereby markedly influences the institutional architecture of post-conflict justice.
This Chapter identifies a challenge to the quest of combating impunity through trials and imprisonment, namely, the reality that reducing impunity for one ‘side’ in a conflict may mean overlooking the abuses inflicted by the other ‘side’. On the other hand, and on a cautionary note, this Chapter questions what it actually would be like to live in a world without any impunity.
This Chapter is normative in that, as a matter of institutional politics, it seeks to further pluralize and diversify the range of actors and entities engaged in the fight against impunity. This Chapter argues that a starting point for this journey would be to re-imagine a broader understanding of poena as one that posits impunity as freedom from harmful consequences, recrimination, reparations, shame, or sanction. This Chapter then speculates how some post-conflict initiatives other than criminal trials might fit within this more capacious conceptualization of poena. These initiatives include informational transparency, forgetting, truth commissions, film, and reclaiming memory.
Invitation to submit contributions
Italian Yearbook of International Law, Volume XXVII (2017)
The Board of Editors of the Italian Yearbook of International Law (IYIL) is now considering submissions for Volume XXVII (2017).
The Volume will be composed of a Focus on “Sanctions and Restrictive Measures in International Law”, which will address both theoretical and practical aspects of the current practice regarding sanction regimes; an Articles section, with doctrinal contributions of a general character, and a Notes and Comments section, with timely analysis of recent developments.
Manuscripts shall be submitted to the Editors by 28 February 2018, e-mail address: firstname.lastname@example.org. Submissions shall indicate the Section (Focus, Articles or Notes and Comments) for which the manuscript should be considered. A half-page CV shall also be included. The maximum length of manuscripts is 12,000 words (including footnotes) for contributions to the Focus and Articles sections and 8,000 words (including footnotes) for the Notes and Comments. All submitted manuscripts will undergo a double-blinded review process.
Prospective contributors are encouraged to inform the Editors as soon as possible of their intention to submit a manuscript, so as to be sure that the Yearbook is still considering submissions.
- Romola Adeola & Frans Viljoen, The Right Not to Be Arbitrarily Displaced in Africa
- Elimma C. Ezeani & Elizabeth Williams, Regulating Corporate Directors’ Pay and Performance: A Comparative Review
- Patrick Agejo Ageh, Ethical Dilemma with Respect to CBD Regulations in Genetic Modification of Biological Resources in Cameroon
- Gerard Emmanuel Kamdem Kamga, Emergency Regimes in Cameroon: Derogations or Failures of Law?
- E. H. Ngwa Nfobin, The Francophone/Anglophone Split over Article 47 of the Constitution of the Federal Republic of Cameroon: An Abiding Malaise with an Explosive Charge
- Aniekan Iboro Ukpe, Trade Integration in a Layered System of International Law
- Richard M. Temple, African Natural Resources Agreements: Stabilisation Tricks and Traps for the Unwary