The law of treaties is in constant motion, understood not only as locomotion, but also as motion through time and as change. Thus, kinesis and stasis, two sides of the same concept of 'motion', are the central themes of Treaties in Motion. The concept of motion adopted in this book is based on the philosophy of Aristotle. He identified six types of motion: creation (genesis), increase (auxesis), diminution (meiosis), alteration (alloiosis), destruction (phthora), and change of place (kata topon metabole), which has been amended by the authors to change in space-time (kata topon kai chronon metavole) to reflect our modern scientific understanding of time as a dimension through which motion and change occurs. Each chapter's analysis proceeds by focusing on a specific area of a treaty's 'life-cycle', where each type of motion shines through and is described through three different frames of reference: treaties, the Vienna Convention of the Law of Treaties, and customary law.
Saturday, June 27, 2020
Fitzmaurice & Merkouris: Treaties in Motion: The Evolution of Treaties from Formation to Termination
This book analyses the current legal framework seeking to protect cultural heritage during armed conflict and discusses proposed and emerging paradigms for its better protection. Cultural heritage has always been a victim of conflict, with monuments and artefacts frequently destroyed as collateral damage in wars throughout history. In addition, works of art have been viewed as booty by victors and stolen in the aftermath of conflict. However, deliberate destruction of cultural sites and items has also occurred, and the Intentional destruction of cultural heritage has been a hallmark of recent conflicts in the Middle East and North Africa, where we have witnessed unprecedented, systematic attacks on culture as a weapon of war. In Iraq, Syria, Libya, Yemen, and Mali, extremist groups such as ISIS and Ansar Dine have committed numerous acts of iconoclasm, deliberately destroying heritage sites, and looting valuable artefacts symbolic of minority cultures. This study explores how the international law framework can be fully utilised in order to tackle the destruction of cultural heritage, and analyses various paradigms which have recently been suggested for its better protection, including the Responsibility to Protect paradigm and the peace and security paradigm.
- Theodor Schilling, The Recognition of Human Rights: A Threefold Myth
- David Keane, Mapping the International Convention on the Elimination of All Forms of Racial Discrimination as a Living Instrument
- Amrei Müller, Can Armed Non-state Actors Exercise Jurisdiction and Thus Become Human Rights Duty-bearers?
- Annick Pijnenburg, Containment Instead of Refoulement: Shifting State Responsibility in the Age of Cooperative Migration Control?
- Jonathan Collinson, Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest
- Shu-Perng Hwang, Margin of Appreciation in Pursuit of Pluralism? Critical Remarks on the Judgments of the European Court of Human Rights on the ‘Burqa Bans’
States across Asia have long engaged in international investment treaty making, and to a lesser extent in investor-state dispute settlement (ISDS) proceedings. Engagement has intensified partly as bilateral investment treaties (BITs) proliferated especially from the 1990s, but also Asian states started to conclude more comprehensive bilateral and then regional free trade agreements (FTAs), including within and with the Association of Southeast Asian Nations (ASEAN). Some nations have been more cautious historically, and recent experiences with ISDS claims have led Indonesia and especially India to terminate many old BITs and press out in new directions. This paper details Asia’s trajectory towards becoming more of a “law maker” by focusing on multilateral initiatives (through soft and hard law), ASEAN and its key member states, China and the “Belt and Road” initiative, India, Japan and Korea, Australia and New Zealand.
Should states intervene in situations outside of their own territory in order to safeguard or promote the common good? In this book, Cedric Ryngaert addresses this key question, looking at how the international law of state jurisdiction can be harnessed to serve interests common to the international community. The author inquires how the purpose of the law of jurisdiction may shift from protecting national interests to furthering international concerns, such as those relating to the global environment and human rights. Such a shift is enabled by the instability of the notion of jurisdiction, as well as the interpretative ambiguity of the related notions of sovereignty and territoriality. There is no denying that, in the real world, 'selfless intervention' by states tends to combine with more insular considerations. This book argues, however, that such considerations do not necessarily detract from the legitimacy of unilateralism, but may precisely serve to trigger the exercise of jurisdiction in the common interest.
Many sovereignty conflicts remain unresolved around the world. Current solutions in law, political science and international relations generally prove problematic to at least one of the agents part of these differences. Arguing that disputes are complex, multi-layered and multi-faceted, this book brings together a global, inter-disciplinary view of territorial disputes. The book reviews the key conceptual elements central to legal and political sciences with regards to territorial disputes: state, sovereignty and self-determination. Looking at some of the current long-standing disputes worldwide, it compares and contrasts the many issues at stake and the potential remedies currently available in order to assess why some territorial disputes remain unresolved. Finally, it offers a set of guidelines for dispute settlement and conflict resolution that current remedies fail to provide.
- David K. C. Huang & Nigel N. T. Li, Bu-Fu-Zhou: A Lesson from Ancient China: Degeneration of the Institution of Zhou from Constitution to International Law and on to Anarchy
- Sean Morris, The Private Foundations of International Law: Intellectual Property Rights and Pashukanis
- O. V. Kresin, Ukrainian Statehood in the Mid-Seventeenth to Early Eighteenth Centuries in Treaties with Foreign States: Principal Legal Models (Part One)
- V. S. Ivanenko, Aleksandr Pilenko: International Law and Invention Law in Russia
- Notes and Comments
- Mohsen Nikbin, On the Origins of the Earliest Lecture on International Law In Persia
- Documents and Other Evidence of State Practice
- William E. Butler, Thomas Baty: Legal Adviser to the Government of Japan
- Thomas Baty, Enemy Allegiance, Domicile, and “House of Trade”
- Peter Macalister-Smith & Joachim Schwietzke, A Brief Calendar of State Practice for Shandong: 1897-1924: Part One (1897-1904): Open Door to China
Friday, June 26, 2020
- Raphaël Cahen, Frederik Dhondt & Elisabetta Fiocchi Malaspina, L’essor récent de l’histoire du droit international
- Dante Fedele, Between private and public law : The contribution of late medieval ius commune to the conceptualisation of diplomatic representation
- Frederik Dhondt, Renonciations et possession tranquille : l’abbé de Saint-Pierre, la paix d’Utrecht et la diplomatie de la Régence
- Raphaël Cahen, Hauterive et l’école des diplomates (1800-1830)
- Elisabetta Fiocchi Malaspina, « Toil of the noble world » : Pasquale Stanislao Mancini, Augusto Pierantoni and the international legal discourse of 19th century Italy
- Sebastian M. Spitra, After the Great War : International Law in Austria’s First Republic, 1918–mid 1920s
- Maria Adele Carrai, Historiographies of International Law from a Chinese Perspective
- Anne-Charlotte Martineau, Comment et pourquoi écrire l’histoire du droit international ? Le cas de l’abolition de l’esclavage
- Pierre-Marie Dupuy, 2000–2020: twenty years later, where are we in terms of the unity of international law?
- Stephen Allen, Exploiting non-self-governing territory status: Western Sahara and the new EU/Morocco Sustainable Fisheries Partnership Agreement
- Tomohiro Mikanagi & Kubo Mačák, Attribution of cyber operations: an international law perspective on the Park Jin Hyok case
- José-Miguel Bello y Villarino, If Mr Nottebohm had a golden passport: a study of the obligations for third countries under international law regarding citizenships-for-sale
- Giorgio Risso & Anna Chiara Amato, Pleas of illegality and the application of domestic law in investment treaty arbitration
- Special Issue: UNCITRAL and Investment Arbitration Reform: Matching Concerns and Solutions
- Malcolm Langford, Michele Potestà, Gabrielle Kaufmann-Kohler & Daniel Behn, Special Issue: UNCITRAL and Investment Arbitration Reform: Matching Concerns and Solutions: An Introduction
- Daniel Behn, Malcolm Langford & Laura Létourneau-Tremblay, Empirical Perspectives on Investment Arbitration: What Do We Know? Does It Matter?
- Gabriel Bottini, Catharine Titi, Facundo Pérez Aznar, Julien Chaisse, Marko Jovanovic & Olga Puigdemont Sola, Excessive Costs and Recoverability of Costs Awards in Investment Arbitration
- José Manuel Álvarez Zárate, Crina Baltag, Daniel Behn, Jonathan Bonnitcha, Anna De Luca, Holger Hestermeyer, Malcolm Langford, Loukas Mistelis, Clara López Rodríguez, Gregory Shaffer & Simon Weber, Duration of Investor-State Dispute Settlement Proceedings
- Julian Arato, Chester Brown & Federico Ortino, Parsing and Managing Inconsistency in Investor-State Dispute Settlement
- Anna De Luca, Mark Feldman, Martins Paparinskis & Catharine Titi, Responding to Incorrect Decision-Making in Investor-State Dispute Settlement: Policy Options
- Andrea K. Bjorklund, Daniel Behn, Susan D. Franck, Chiara Giorgetti, Won Kidane, Arnaud de Nanteuil & Emilia Onyema, The Diversity Deficit in International Investment Arbitration
- Chiara Giorgetti, Steven Ratner, Jeffrey Dunoff, Shotaro Hamamoto, Luke Nottage, Stephan W. Schill & Michael Waibel, Independence and Impartiality of Adjudicators in Investment Dispute Settlement: Assessing Challenges and Reform Options
- Karolina Aksamitowska, Traditional Approaches to the Law of Armed Conflict: Disseminating IHL through the Receptor Approach
- Cédric Cotter & Ellen Policinski, A History of Violence: The Development of International Humanitarian Law Reflected in the International Review of the Red Cross
- Rob Grace, Humanitarian Negotiation with Parties to Armed Conflict: The Role of Laws and Principles in the Discourse
- Hyeran Jo, International Humanitarian Law on the Periphery: Case of Non-state Armed Actors
- Diego Mauri, The Holy See’s Position on Lethal Autonomous Weapons Systems: An Appraisal through the Lens of the Martens Clause
- Tara Smith, A Framework Convention for the Protection of the Environment in Times of Armed Conflict: A New Direction for the International Law Commission’s Draft Principles?
- Margherita Stevoli, Famine as a Collateral Damage of War
While scholars have typically modeled climate change as a global collective action challenge, we offer a dynamic theory of climate politics based on the present and future revaluation of assets. Climate politics can be understood as a contest between owners of assets that accelerate climate change, such as fossil fuel plants, and owners of assets vulnerable to climate change, like coastal property. To date, obstruction by “climate-forcing” asset holders has been a large barrier to effective climate policy. But as climate change and decarbonization policies proceed, holders of both climate-forcing and “climate-vulnerable” assets stand to lose some or even all of the value of their assets over time, and with them, the basis of their political power. This dynamic contest between opposing interests is likely to intensify in many sites of political contestation, from the subnational to transnational levels. As it does so, climate politics will become increasingly existential, potentially reshaping political alignments within and across countries. Such shifts may further undermine the LIO: as countries develop pro-climate policies at different speeds and magnitudes, they will have incentives to diverge from existing arrangements over trade and economic integration.
Palmer: International Criminal Law and Border Control: The Expressive Role of the Deportation and Extradition of Genocide Suspects to Rwanda
The use of criminal law in border control has gained increasing and warranted scholarly attention. International criminal law is no exception, although the orientation of the debates in international law is different from that at the national level. While scholarship on domestic border control is characterised by a deep scepticism of the use of criminal sanction, the focus in international criminal law has been on the exclusion of individuals suspected of involvement in an international crime from the protective sphere of refugee law. The divergence of this scholarship does not fully account for how responses to allegations of involvement in an international crime are often embedded within domestic immigration laws, making concerns regarding domestic border control relevant for discussions in international criminal law. To examine these domestic entanglements, this paper analyses an independently generated dataset of 122 cases in 20 countries concerning 102 individuals alleged to have participated in the 1994 genocide in Rwanda. This dataset enables an empirical analysis of the role that international criminal law is playing in their extradition, deportation or domestic prosecution. It argues that these cases are underpinned by plural types of expressive work. They communicate not only an on-going commitment to recognising the universal wrong of genocide, but also more ambiguous messaging about what constitutes a fair trial in Rwanda, who constitutes a ‘criminal migrant’ and, to a Rwandan audience, the transnational penal reach of the Rwandan state.
Thursday, June 25, 2020
This is a moment of repudiation of international law and of reckoning with racial injustice and committing to anti-racism. Some of the leading States that have shaped international law are not only exiting treaties, but also openly declaring and operating outside its rules. This lecture argues that one important way to trace the promise of international law at this moment of difficulty is to go outside the beltway of our discipline to places often unfamiliar in our textbooks and the locations where we practice and teach international law. To do that, this lecture will take you to places like Arusha, Tanzania, the seat of three international courts.
In doing so, the lecture will bring into our conversation the voices of international lawyers from the Third World and the everyday issues that drive their practice and scholarship often under very difficult political circumstances. To appreciate fully the promise of international law, it is important to go beyond the usual debates, places and canons of our discipline in two ways.
First, this lecture challenges the limited geography of places and ideas that dominate the beltway of our discipline. This limited geography and set of ideas is characterized by the law of Geneva, the law of Strasbourg, the law of New York and that of Washington DC. These are the places that our discipline celebrates as producers of the type of international law which in turn becomes the benchmark for the efficacy of international law produced elsewhere. These are also the locations where the bulk of international legal practice is produced and which influences and reinforces our understandings not only of international practice but also of international law more generally.
My second major point in this lecture, which proceeds from a Third Approaches to International Law (TWAIL) perspective, is that TWAIL speaks from a subaltern epistemic location. This means that TWAIL questions international law’s presumed universality. TWAIL contests the idea that international law is applicable everywhere and that we should therefore regard it as a view from nowhere. Third World States and TWAIL scholars have contested this non−situated, universal status of international law in a variety of ways. Ultimately, this lecture defends the claim that the Third World is an epistemic site of production and not merely a site of reception of international legal knowledge. Recognizing and grounding the Third World as a site knowledge production and of the practice of international law disrupts the assumptions that international legal knowledge is exclusively produced in the West for consumption and governance of the Third World. This lecture therefore argues that what is at stake is not an issue of inclusion or exclusion of non-western peoples, states within Western international law. Rather, it involves considerations of the very terms of the constitutional order of 'post-Enlightenment social knowledge, its structures of thought, and related constructions of political subjectivity'.
A bibliography of TWAIL scholarship from 1996 to 2019 is appended to this lecture.
Histories of international law have typically focused on the origins of legal rules and doctrines, the decisions of courts and other formal tribunals, the views of professors and legal theorists and diplomats, and the evolution of the legal profession. That is, international legal histories have centered on the concerns of lawyers and states and have reflected a positivist vision of international lawmaking. We need a history of international law that focuses more on international law in action—the invocation, elaboration, and contestation of rules in and through their everyday application, not just by states, high-level state actors, legal theorists, and state-organized domestic and international institutions, but also by individuals, low-level officials, private groups, and nongovernmental actors and in places outside of the usual fora where “international law” is said to be found. We need a history of international law in the vernacular.
Wednesday, June 24, 2020
This paper revisits the 1928 Pact of Paris (also known as the Kellogg-Briand Pact) with special consideration for German and Austrian scholarship during the interwar period and embed it in its historical context, from the establishment of the League of Nations to the Nuremberg Tribunals all the way to the United Nations Charter. Given that the 2016 election of Donald Trump as US president and the parallel rise of China prompts us to contemplate whether we might be witnessing the return of a quasi-Cold War or Great Power-politics, a few concluding thoughts on the waning ‘liberal world order’ and the comeback of (neo-)realist thinking are also warranted.
Machine learning algorithms hold out the promise of making sense of vast quantities of information, detecting patterns, and identifying anomalies better than humans. It seems safe to predict that in the coming decades militaries will rely heavily on predictive algorithms, machine learning, and artificial intelligence in many aspects of warfighting. Military operators, programmers, and lawyers will confront difficult challenges as they try to create decision-support algorithms that are sensitive to the law of armed conflict (LOAC). Lawyers will need to understand the capabilities, requirements, and limits of algorithms, while programmers will need to learn the basics of LOAC and how militaries make LOAC-infused decisions under pressure.
This chapter argues that these actors should pursue a three-step process: (1) identifying the applicable law; (2) crafting and training the algorithm around factors that will produce a recommendation relevant to that legal framework; and (3) interpreting the algorithmic predictions through the lens of that law. The goal should be to produce law-sensitive, data-driven algorithmic recommendations that lawyers and operators can act on. Further, the efforts to create legally-sensitive predictive algorithms may alter the kinds of inter-agency processes that states undertake to interpret LOAC rules and stimulate militaries to re-evaluate how they currently undertake their human-only analyses.
International law scholars and policy makers have paid little attention to the gendered dimensions of living under occupation. Gender considerations have generally been at the margins of doctrinal and policy analysis. Feminist legal scholars have also largely ignored the legal effects of occupation law and practice on the regulation of women and girl’s lives including the gendered consequences of experiencing long-term, exceptional and transformative occupations. This article sets out how the rules governing occupation were not constructed with needs and experiences of women and girls at the forefront. It documents the effects of transformative occupations on women’s lives with a particular emphasis on how the lacunae in protection under the Hague and Geneva Conventions results in profound and sustained human rights and humanitarian law violations for women and girls, across a range of fundamental rights and protections. The historical and doctrinal analysis is complimented by a case study focused on Israel-Palestine, and particularly pertinent in the context of ongoing concerns about annexation of this occupied territory. The context specific analysis illustrates the gendered dimensions of occupation in general and the Israeli-Palestinian conflict in particular demonstrating that the needs of, and harms experienced by, women living under sustained occupation have been underreported and underrepresented. The documentation of legal gaps underscores the need for revision and reinterpretation of occupation law through a gendered lens, underscoring the obligations of belligerent occupiers to ensure the protection of women in the context of armed conflict.
- KJ Keith, Kirby Lecture in International Law 2019: New Zealand, Australia and International Human Rights: 1919–2019
- Tim McCormack, Siobhain Galea & Daniel Westbury, The Sir Elihu Lauterpacht International Law Lecture 2018: The Development of Humanity as a Constraint on the Conduct of War
- Christina Voigt, ANZSIL Conference Keynote 2019: Climate Change, the Critical Decade and the Rule of Law
- Suzanne Zhou & Jonathan Liberman, Public Health, Intellectual Property, and the Trade and Investment Law Challenges to Australia and Uruguay’s Tobacco Packaging Laws
- Benn McGrady, Tobacco Plain Packaging and the Expanding Role of the wto in Regulatory Oversight
- Tania Voon, Tobacco, Health and Investor-State Dispute Settlement: Australia’s Recent Treaty Practice
- Emma Boland & Andrea Gronke, Australia’s Approach to ISDS Reform in Light of Philip Morris Asia v Australia
- Lee Walker, Truncheons and Tenterhooks: Civil Suits against Foreign Officials in Common-law Jurisdictions
- John Abrahamson, Joint Development of Offshore Oil and Gas Resources in the South China Sea—New Contexts for Regional Cooperation Following the South China Sea Arbitration
- Jessica Reynolds, A Sinking Feeling: The Effect of Sea Level Rise on Baselines and Statehood in the Western Pacific
- Lars Löfquist, Is there a universal human right to electricity?
- Markus Bauer, Daniela Truffer & Daniela Crocetti, Intersex human rights
- Lisa McIntosh Sundstrom & Valerie Sperling, Seeking better judgment: LGBT discrimination cases in Russia and at the European Court of Human Rights
- Farid Mohammed Rashid, The hidden discretionary capacity of the ICC prosecutor: revisiting the analysis of legal and relative gravity
- Adam Hughes Henry, Gough Whitlam and the politics of universal human rights
- Monica Pinilla-Roncancio , María Goméz-Castillo & Eilionoir Flynn, Data and human rights for persons with disabilities: the case of deprivation of liberty
- M. Lutfi Chakim, The margin of appreciation and freedom of religion: assessing standards of the European Court of Human Rights
- Christian Enemark, On the responsible use of armed drones: the prospective moral responsibilities of states
- Corina Lacatus & Kathryn Nash, Peace agreements and the institutionalisation of human rights: a multi-level analysis
Labuda: UN Peacekeeping as Intervention by Invitation. Host State Consent and the Use of Force in Security Council-mandated Stabilization Operations
Contemporary UN peacekeeping missions often have Chapter VII mandates and wide authorizations to use force, notably to protect civilians. Since 2010, however, the Security Council has created a new generation of stabilization missions to support host governments. Peacekeepers in these missions are expected not only to protect civilians but also to combat armed groups, sometimes jointly with state security forces. While this may seem like just the next step in the UN’s gradual drift from traditional to robust peacekeeping, this article argues that stabilization constitutes a more radical departure from conventional doctrines on the use of force by peacekeepers. In fact, stabilization should be understood as a distinct form of UN-mandated intervention by invitation.
Tuesday, June 23, 2020
- Noah A. Bialos, The Identification of Customary International Law: Institutional and Methodological Pluralism in U.S. Courts
- Sonia E. Rolland, The Impact of Trade and Investment Treaties on Fiscal Resources and Taxation in Developing Countries
Lubell & Cohen: Strategic Proportionality: Limitations on the Use of Force in Modern Armed Conflicts
The nature of modern armed conflicts, combined with traditional interpretations of proportionality, poses serious challenges to the jus ad bellum goal of limiting and controlling wars. In between the jus ad bellum focus on decisions to use force, and the international humanitarian law (IHL) regulation of specific attacks, there is a far-reaching space in which the regulatory role of international law is bereft of much needed clarity. Perhaps the most striking example is in relation to overall casualties of war. If the jus ad bellum is understood as applying to the opening moments of the conflict, then it cannot provide a solution to growing numbers of casualties later in the conflict. Moreover, if it does not apply to non-international armed conflicts, then it is of little use in relation to alleviating the suffering of war for a vast proportion of conflicts in the past half a century and more. IHL is equally unsuited for dealing with overall casualties, as it may be the case that each individual attack is proportionate, but the cumulative number of civilians being killed is slowly rising to intolerable figures. A similar problem arises with regard to assessing other forms of accumulated destruction. This article sets out a new approach to proportionality in armed conflict and the regulation of war. It advocates for a principle of “strategic proportionality,” stemming from general principles of international law and reflected in state practice, and which requires an ongoing assessment throughout the conflict balancing the overall harm against the strategic objectives. The article traces the historical development and aims of the principle of proportionality in war, sets out the scope and aims of strategic proportionality, and provides an analysis of how such a principle can be operationalized in practice.
- State practice concerning marine protected areas
- Chie Kojima, Legal Structures of Marine Protected Areas in Japan
- Young Kil Park & Seokwoo Lee, Marine Protected Areas in South Korea
- Chi-Ting Tsai & Nien-Tzu Alfred Hu, The Modernization of Area-Based Marine Protection in Taiwan
- Diep Ngoc Vo, Viet Nam’s National System of Marine Protected Areas
- Jacqueline Joyce F. Espenilla, Area-Based Marine Protection in the Philippines: The MPA Experience
- Anastasia Telesetsky, United States Law, Marine Protected Areas, and Challenges to “Lasting Protection”
- Anna-Maria Hubert & Stuart Gray, Area-Based Marine Protection in Canada
- Joanna Mossop, Marine Protected Areas and Area-Based Management in New Zealand
- Quentin Hanich, Clive Schofield & Chris Smyth, Going Big in the Pacific: Large-Scale Marine Protected Areas in the Pacific Ocean
- Benjamin Tkach, Private military and security companies, corporate structure, and levels of violence in Iraq
- Glen Biglaiser & David Lektzian, The effects of economic sanctions on targeted countries’ stock markets
- Jillienne Haglund, Domestic Politics and the Effectiveness of Regional Human Rights Courts
- William Spaniel & Michael Poznansky, Bad-faith cooperation
- Seung-Whan Choi , Youngwan Kim , David Ebner & Patrick James, Human rights institutionalization and US humanitarian military intervention
- Research Notes
- Ross A. Miller, Welcome to the Jungle: a research note on leader entry, combat experience, and dispute targeting
- Brandon Yoder & Kyle Haynes, Mutual uncertainty and credible reassurance: experimental evidence
Monday, June 22, 2020
- Alessandra Spadaro, Punish and Be Punished? The Paradox of Command Responsibility in Armed Groups
- Audrey Fino, Defining Hate Speech: A Seemingly Elusive Task
- Rafael Braga da Silva, Sherlock at the ICC? Regulating Third-Party Investigations of International Crimes in the Rome Statute Legal Framework
- Jill E B Coster van Voorhout, Combatting Human Trafficking Holistically through Proactive Financial Investigations
- Birju Kotecha, The International Criminal Court’s Selectivity and Procedural Justice
- Janine Natalya Clark, Emotional Legacies, Transitional Justice and Alethic Truth: A Novel Basis for Exploring Reconciliation
- National Prosecution of International Crimes: Legislation and Cases
- Ida Richter, Nazi Crimes Before West German Courts: Fritz Bauer as a Visionary of International Criminal Justice?
- Cases Before International Courts and Tribunals
- Gabrielė Chlevickaitė, Barbora Holá, & Catrien Bijleveld, Judicial Witness Assessments at the ICTY, ICTR and ICC: Is There ‘Standard Practice’ in International Criminal Justice?
Palestini: La protection des intérêts juridiques de l'État tiers dans le procès de délimitation maritime
Qui dit État tiers au procès de délimitation maritime, dit avant tout risque d’empiéter sur les espaces susceptibles d’appartenir à ce dernier. L’empiétement se produit lorsque, avant d’atteindre l’extrémité de la délimitation retenue par les juges ou arbitres, ce sont les espaces maritimes d’un État tiers, et non plus ceux des Parties au procès, qui risquent d’être présents de part et d’autre de la ligne.
Dans la mesure où tout État côtier peut, entre autres, revendiquer des espaces maritimes situés jusqu’à 200 milles marins de son littoral, tels que la zone économique exclusive et le plateau continental, il en découle que bien souvent trois, voire quatre, projections côtières finissent par se superposer sur un seul et unique espace maritime.
Ce chevauchement de titres, à l’origine d’une pluralité de différends, engendre le risque d’empiétement, mais aussi d’autres difficultés aux stades, par exemple, de l’identi fication de la zone pertinente aux fins de délimiter et de la vérification de l’absence de disproportion marquée entre les espaces attribués à chacune des Parties à la procédure. Assurément, en présence de tiers, le procès de délimitation maritime est un sentier semé d’embûches où le risque de commettre un faux pas est particulièrement tangible.
Si les conflits en mer de Chine méridionale et dans l’Arctique témoignent de l’actualité du sujet, il convient de souligner que cette problématique survient dans tous les océans et mers du monde. L’importance du sujet ne peut d’ailleurs que croître à l’avenir car ce sont justement les différends maritimes impliquant plus que deux États qui ont tendance à se perpétuer dans le temps.
L’ouvrage met en lumière une attitude au demeurant contradictoire. D’un côté, la jurisprudence se montre favorable à la prise en considération des intérêts des États tiers. Cela témoigne de la reconnaissance du fait que le principe de la relativité de la chose jugée offre une protection tout compte fait insuffisante aux tiers. D’un autre côté, cependant, la Cour internationale de Justice adopte une approche trop restrictive en matière d’intervention. Ceci atteste d’une politique judiciaire qui s’enferme dans une logique bilatérale à notre sens déplacée et contreproductive.
- Felipe Volio Soley, El nuevo panorama de la mediación internacional comercial: aciertos en la ejecución de los acuerdos de transacción y desafíos en el ámbito de aplicación de la Convención de Singapur.
- Diego Piedra Trejos, Addressing the Clash of Interests Between Investment Treaty Law and International Climate Change Law.
- Lady Carolina Guzmán Marenco, Registro de la huella genética de condenados y Derechos Humanos: a propósito del anteproyecto de ley del Registro Genético y Otros Datos de Identificación en El Salvador.
- Jorge Arturo González Calderón & Valeria Alvarado Andrade, A Test for Disgorgement under the UN Convention on the International Sale of Goods (CISG).
- Herman Duarte, Libertad religiosa: ¿licencia para discriminar?
- Andrea Carcano, The Challenges of Populism: What Role for International Law Scholars?
- Giada Grattarola, Diritto al ricongiungimento familiare e nozione di situazione puramente interna nella recente giurisprudenza della Corte di giustizia dell’Unione europea
- Elisabetta Mottese, Ergastolo e diritti umani nella prospettiva del diritto internazionale ed europeo
- CRC and Its Friends: 30 Years of Outsourcing Interpretation of Children’s Rights
- Luigi Crema, The Convention on the Rights of the Child Before the UN Treaty Bodies and the ICJ: ‘Taking into Account’ or Ignoring?
- Francesca Ippolito, The Convention on the Rights of the Child in Litigation Before the European Social Charter Committee and the European Court of Human Rights: «Why Then, Can One Desire Too Much of a Good Thing?»
- Enzamaria Tramontana, The UN Convention on the Rights of the Child’s Role in Litigation Before the Committee of Experts of the African Children’s Charter
- Deborah Russo e Monica Parodi, The Implementation of the Convention on the Rights of the Child in the Italian Legal Order: A Provisional Balance
- Giuseppe Cataldi, Disobbedienza e diritto nell’ottica dell’internazionalista
- Morgan Eleanor Harris, Carvalho and Others v. Parliament and Council: Climate Justice and ‘Individual Concern’
- Concetta Maria Pontecorvo, Il diritto internazionale ai tempi del (nuovo) Coronavirus: prime considerazioni sulla recente epidemia di ‘COVID-19’
- Mariangela La Manna, Cambiamento climatico e diritti umani delle generazioni presenti e future: Greta Thunberg (e altri) dinanzi al Comitato sui diritti del fanciullo
- Lorenzo Acconciamessa, Occasioni mancate: il bilanciamento tra diritto alla vita familiare e best interest of the child, e la rappresentanza del minore nella sentenza Strand Lobben
- Silvia Borelli, Pushing Back Against Push-backs: A Right of Entry for Migrants and Asylum Seekers Unlawfully Prevented from Reaching Italian Territory?
- Anna Liguori, Violazioni conseguenti all’attuazione della Dichiarazione UETurchia e giurisprudenza della Corte europea dei diritti umani sugli hotspots greci: la sentenza Kaak
- Irene Blázquez Rodríguez, El estatuto jurídico de los nacionales de terceros países: de la reacción ante la crisis migratoria a la sinergia necesaria
- Carlos Esplugues Mota, La Convención de Singapur de 2018 sobre mediación y la creación de un título deslocalizado dotado de fuerza ejecutiva: una apuesta novedosa, y un mal relato
- Laura García Martín, Responsabilidad empresarial por violaciones de los derechos humanos en la justicia transicional: aportes del caso argentino
- Cristina González Beilfuss, Reflexiones en torno a la función de la autonomía de la voluntad conflictual en el Derecho internacional privado de familia
- Ángeles Jiménez García-Carriazo, Prospecciones turcas en aguas chipriotas, una nueva dimensión del enfrentamiento
- María del Pilar Pozo Serrano, Las repercusiones del "Brexit" sobre el proceso de paz de Irlanda del Norte: consideraciones provisionales
- Antonio José Sánchez Ortega, La política exterior rusa y su relación con occidente: Una visión desde el realismo neoclásico
- Foro. El rescate de personas en el mediterráneo
- José Alejandro del Valle Gálvez, Sobre la inviabilidad del modelo de fronteras exteriores europeas en el Mediterráneo
- Giuseppe Cataldi, Búsqueda y rescate: la necesidad de equilibrar el control de fronteras con las obligaciones en materia de Derecho del mar y de los derechos humanos
- Foro. La resolución del IDI sobre internet y la vulneración de la privacidad
- Pedro Alberto de Miguel Asensio, Tutela transfronteriza de los derechos de la personalidad ¿hacia la armonización internacional?: (A propósito de la resolución del "Institut de droit international" de 2019)
- Aurelio López-Tarruella Martínez, Una visión crítica de la resolución del idi sobre internet y la vulneración de la privacidad desde el punto de vista del derecho internacional privado de la unión europea
- Syméon Karagiannis, Les obligations de l’État côtier face aux dangers pour la navigation maritime dans ses eaux côtières
- Djoleen Moya, Conflits intra-européens de lois et conflits de souverainetés
- Mireille Delmas-Marty, Quelle boussole pour un monde déboussolé?
- Renan Le Mestre, Les tribus indiennes et les États-Unis ou l’énigme d’une souveraineté inhérente, mais subordonnée
- Isabelle Pingel, L’immunité des membres du Parlement européen: Observations sur l’arrêt de la Cour de justice de l’Union européenne du 19 décembre 2019, Oriol Junqueras Vies
- Regards comparatistes sur la réforme belge du droit de la responsabilité extra-contractuelle : quelques suggestions pour le législateur et le juge
- L. Lemo, La pénalisation de l’inexécution des obligations contractuelles — contribution au débat à propos de la filouterie des loyers en droit camerounais
- M. Possoz, La crise de la fiscalité au Brésil
Sunday, June 21, 2020
Kohli: Imperialism and the Developing World: How Britain and the United States Shaped the Global Periphery
How did Western imperialism shape the developing world? In Imperialism and the Developing World, Atul Kohli tackles this question by analyzing British and American influence on Asia, Africa, the Middle East, and Latin America from the age of the British East India Company to the most recent U.S. war in Iraq. He argues that both Britain and the U.S. expanded to enhance their national economic prosperity, and shows how Anglo-American expansionism hurt economic development in poor parts of the world.
To clarify the causes and consequences of modern imperialism, Kohli first explains that there are two kinds of empires and analyzes the dynamics of both. Imperialism can refer to a formal, colonial empire such as Britain in the 19th century or an informal empire, wielding significant influence but not territorial control, such as the U.S. in the 20th century. Kohli contends that both have repeatedly undermined the prospects of steady economic progress in the global periphery, though to different degrees.
Time and again, the pursuit of their own national economic prosperity led Britain and the U.S. to expand into peripheral areas of the world. Limiting the sovereignty of other states-and poor and weak states on the periphery in particular-was the main method of imperialism. For the British and American empires, this tactic ensured that peripheral economies would stay open and accessible to Anglo-American economic interests. Loss of sovereignty, however, greatly hurt the life chances of people living in Asia, the Middle East, Africa, and Latin America. As Kohli lays bare, sovereignty is an economic asset; it is a precondition for the emergence of states that can foster prosperous and inclusive industrial societies.
Global justice is an exciting area of refreshing, innovative new ideas for a changing world facing significant challenges. Not only does work in this area often force us to rethink about ethics and political philosophy more generally, but its insights contain seeds of hope for addressing some of the greatest global problems facing humanity today. The Oxford Handbook of Global Justice has been selective in bringing together some of the most pressing topics and issues in global justice as understood by the leading voices from both established and rising stars across twenty-five new chapters. This Handbook explores severe poverty, climate change, egalitarianism, global citizenship, human rights, immigration, territorial rights, and much more.
This article argues that issues of race and identity have so far been underemphasized, understudied and undertheorized in mainstream international law. To address this major gap, this Article argues that there is an opportunity for learning, sharing, and collaboration between Critical Race Theorists (CRT) and scholars of Third World Approaches to International Law (TWAIL). Such a collaboration, this Article argues, would produce a very sharp lens of tracing issues of race and identity in the imperial, transnational and global histories of international law and their contemporary continuities. By adopting a framework of studying race and identity in a global context, this Article will tie together and connect the domestic and the international. It will connect transnational histories between locations inside and outside the United States that have undergirded and reinforced white supremacism, as well as anticolonial resistance, domestically and internationally. Taking such an approach overcomes the wide variety of segregated and insular conceptualizations and definitions of race and identity within CRT and TWAIL respectively. Building a TWAIL/CRT global/transnational race/histories project will create productive insights about ideologies of racial domination and racial injustices in a domestic, international and transnational context. By combining the insights of CRT and TWAIL, it becomes possible to theorize imperialism and racism beyond those currently embodied in each approach.
The contested and divided province of Jammu and Kashmir, situated on the western side of the Hindu Kush Himalayan Mountains is one of the most dangerous and heavily militarized places on earth. It is a Muslim-majority borderland harboring contested territorial claims of three nuclear powers—India, Pakistan, and China. Through it flow the headwaters of the six major tributaries that form the massive Indus Basin, the essential fresh water source for Pakistan and for upwards of 300 million Indians and Pakistanis. Since 1960, the unusual Indus Waters Treaty has governed the use of these waters. The treaty forwards a water-division rather than a water-sharing arrangement. Pakistan is assigned the three major western tributaries (the Indus, Jhelum, and Chenab Rivers), and India is assigned the three eastern tributaries (the Ravi, Beas, and Sutlej Rivers). Multiple changes in circumstance, principally due to population growth and climate change, tax the operation of the treaty, which has been praised as one of the world’s most successful transboundary water treaties and perhaps the best example of decades-long cooperation between these two bitter enemies. Recent events, linking Pakistan-based terrorist attacks, Hindu nationalism, and constitutional changes to the status of Indian-controlled Jammu and Kashmir, resulted in India’s announcement of its intention to capture all unutilized water flowing into Pakistan from its eastern tributaries. This hard legalization of the terms of the treaty threatens to take the Indus Waters Treaty to its breaking point while evincing existential anxieties in Pakistan over tightening water supply that already make it the third most water stressed country in the world. This article reviews the combustible interface of international riparian law and international customary law with the geopolitics of one of the most dangerous corners of the world, suggesting that the business as usual approach for the Indus Waters Treaty no longer provides a meaningful solution. Backed into a corner from which no ready pathway for revision prevails, this article argues that the parties can only at best undertake much needed domestic breathing space for the Indus Waters Treaty, until that time when an environment for meaningful hydro-diplomacy can take hold.
Group Politics in UN Multilateralism provides a new perspective on diplomacy and negotiations at the United Nations. Very few states ‘act individually’ at the UN; instead they often work within groups such as the Africa Group, the European Union or the Arab League. States use groups to put forward principled positions in an attempt to influence a wider audience and thus legitimize desired outcomes. Yet the volume also shows that groups are not static: new groups emerge in multilateral negotiations on issues such as climate, security and human rights. At any given moment, UN multilateralism is shaped by long-standing group dynamics as well as shifting, ad-hoc groupings. These intergroup dynamics are key to understanding diplomatic practice at the UN.
The updated edition of this acclaimed book offers a critical overview of the law of foreign investment, incorporating a thorough analysis of the principles and standards of treatment available to foreign investors in international law. It is authoritative and multi-layered, offering an analysis of the key issues and an insightful assessment of recent trends in the case law, from both developed and developing country perspectives.
A major feature of the book is that it deals with the tension between the law of foreign investment and other competing principles of international law. In doing so, it proposes ways of achieving a balance between these principles and the need to protect the legitimate rights and expectations of foreign investors on the one hand, and the need not to restrict unduly the right of host governments to implement their public policy on the other, including the protection of the environment and human rights, and the promotion of social and economic justice within the host country.
Many of the pioneering ideas that were advanced in the first edition of this book in 2008 have been taken up by governments and international organisations in their attempts to reform the investor-State dispute settlement mechanism and strike a balance between different competing principles in developing international investment law. Accordingly, this fourth edition captures the essence of the ongoing multiple reform processes -either planned or envisaged – currently underway.
This innovative Research Handbook explores the complex and controversial interactions between intellectual property (IP) and investment law. In light of recent developments at national, European and international levels, the chapters critically examine the legitimacy of current practices with regard to the social function of IP rights and the regulatory autonomy of States to undertake measures in the public interest.
Internationally renowned contributors analyse high profile cases in the framework of global legal forums and agreements, such as the Global Agreement on Tariffs and Trade and the WTO. Exploring the significance of fundamental human rights and ethical concerns, this Research Handbook will provide critical insight into intellectual property law, particularly with respect to the protection of IP as an investment, and its adjudication in the context of investor-state dispute settlement (ISDS) mechanisms.
Bradlow & Fourie: The Multilateral Development Banks and the Management of the Human Rights Impacts of their Operations
The operations of multilateral development banks (MDBs) can have both positive and negative environmental, social and human rights impacts. Since negative impacts can have profound and irreversible consequences, they should be avoided or mitigated. The MDBs also need to provide those adversely affected by these operations with a means for holding the MDBs accountable. They have established independent accountability mechanisms (IAMs) for this purpose. The growing body of IAM practice provides information on how these adverse impacts arise in the course of MDB financed development projects and on how the MDBs interpret and apply their own operational policies aimed at safeguarding social and environmental interests. After considering the primary sources of MDBs’ human rights obligations and responsibilities, this chapter proceeds by analysing selected IAM cases and considering what lessons that can be learned about the MDBs’ approach to managing these adverse impacts, including adverse human rights impacts. The analysis indicates that the MDB’s record in dealing with the adverse human rights impacts of their projects is mixed and that there are significant costs, both to MDBs and their borrowers, of failing to adequately address these impacts. Because the MDBs’ projects are similar to those undertaken by private financial institutions and contractors, understanding how the MDBs deal with the human rights issues that arise in their operations can help deepen our understanding of the human rights responsibilities of these other actors, thereby adding a useful input to the broader ‘business and human rights’ debate to which this volume is dedicated.