En « autorisant » des États d’user de « tous les moyens nécessaires », comme il l’a fait lors de la deuxième « Guerre du Golfe » (de 1990), le Conseil de sécurité ne renonce pas à ses prérogatives au profit des États. Au contraire, le Conseil se sert des États pour mettre en oeuvre ses propres compétences opérationnelles. Ainsi, ces « autorisations » ne constituent pas une exception à l’interdiction du recours à la force dans les relations internationales. L’article 2, paragraphe 4, de la Charte, constitue une véritable confiscation du pouvoir de contrainte militaire au profit du Conseil de sécurité. En vertu de la Charte, le Conseil dispose d’un monopole de la contrainte militaire. N’ayant jamais été doté des moyens pour « faire la guerre », le Conseil doit se servir des États comme exécutants pour mener à bien des mesures coercitives. Les « autorisations » s’apparentent donc à un mandat de droit public.
La crise du Kosovo, les réactions au non-respect par l’Irak de la résolution 687 (1991) et la troisième Guerre du Golfe (de 2002) montrent que le Conseil de sécurité pourrait accorder un tel mandat implicitement. L’analyse de ces affaires montre également qu’on aurait tort de parler de l’émergence d’une nouvelle exception au principe de l’interdiction du recours à la force militaire. En effet, pour se justifier, les États intéressés ont toujours invoqué un prétendu mandat du Conseil.
Saturday, September 26, 2009
Kreipe: Les autorisations données par le Conseil de sécurité des Nations unies à des mesures militaires
Friday, September 25, 2009
- Daniel E. Esser, More Money, Less Cure: Why Global Health Assistance Needs Restructuring
- Rajan Menon, Pious Words, Puny Deeds: The "International Community" and Mass Atrocities
- Darrel Moellendorf, Treaty Norms and Climate Change Mitigation
- Doris Schroeder & Thomas Pogge, Justice and the Convention on Biological Diversity
- Mathias Risse, The Right to Relocation: Disappearing Island Nations and Common Ownership of the Earth
Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws be administered “in a uniform, impartial and reasonable manner.” This obligation was recently considered by the Appellate Body, but uncertainty remains about the scope this provision has to permit WTO panels to review domestic administrative practices. In relation to the WTO’s contribution to democracy, this article first considers the challenges and limitations of the current system of decision making within the WTO and compares it to democratic theory. Second, it examines how democracies comply with the findings of WTO dispute settlement tribunals and how compliance could be improved. It concludes by speculating on the implications of this discussion for public international law more broadly.
- Rochelle C. Dreyfuss, Introduction: Designing Intellectual Property Institutions for the Twenty-First Century
- Daniel J. Gervais, (Re)implementing the Agreement on Trade-Related Aspects of Intellectual Property Rights to Foster Innovation
- Luigi Palombi, Beyond Recombinant Technology: Synthetic Biology and Patentable Subject Matter
- Megan Richardson, Patents and Exhibitions
- Ann L. Monotti, The Australian Experimental Use Exemption: A Current Overview
- Susy Frankel, An Experimental Use Exception from Patent Infringement for New Zealand
- Fiona Rotstein & Chris Dent, Third-Party Patent Challenges in Europe, the United States and Australia: A Comparative Analysis
- Kimberlee Weatherall, It's Not Just Competitors: Acknowledging and Accommodating "Interfering Busybodies" and their Challenges to Patent Validity
- Susan Glazebrook, A Specialist Patent or Intellectual Property Court for New Zealand?
The States Parties of the International Criminal Court (ICC) will likely vote in 2010 on whether to amend the Rome Statute to allow the ICC to prosecute the crime of aggression. If a robust amendment is widely ratified by states, and if the mechanism for triggering ICC jurisdiction in a particular situation is the ICC itself, then the ICC may emerge as an important voice in the debate over the legality of humanitarian intervention taken without Security Council authorization. Prosecutions, or at least indictments, of leaders of those interventions would considerably strengthen the hand of those who regard such intervention as illegal. Yet an unwillingness on the part of the ICC to indict and prosecute those leaders - an outcome that seems likely for incidents of true humanitarian intervention - may lend considerable credence to the view that such intervention is lawful, as well as define the conditions that characterize such intervention.
- Anne Peters, Lucy Koechlin, & Gretta Fenner Zinkernagel, Non-state actors as standard-setters: framing the issue in an interdisciplinary fashion
- Dieter Neubert, Local and regional non-state actors on the margins of public policy in Africa
- Dan Assaf, Conceptualising the use of public-private partnerships as a regulatory arrangement in critical information infrastructure protection
- Lucy Koechlin & Richard Calland, Standard-setting at the cutting edge: an evidence-based typology for multi-stakeholder initiatives
- Lindsey Cameron, New standards for and by private military companies?
- Daniel Kaufmann, Aart Kraay, & Massimo Mastruzzi, Governance matters VII: aggregate and individual governance indicators 1996–2007
- Michael Miklaucic, Contending with illicit power structures: a typology
- Steven Wheatley, Democratic governance beyond the state: the legitimacy of non-state actors as standard-setters
- Julia Black, Legitimacy, accountability and polycentric regulation: dilemmas, trilemmas and organisational response
- Monica Blagescu & Robert Lloyd, Accountability of transnational actors: is there scope for cross-sector principles?
- Marcus Schaper, Non-state environmental standards as a substitute for state regulation?
- Till Förster, Limiting violence – culture and the constitution of public norms: with a case study from a stateless area
- Peter Hägel, Standard-setting for capital movements: reasserting sovereignty over transnational actors?
- Stéphane Guéneau, Certification as a new private global forest governance system: the regulatory potential of the forest stewardship council
- Eva Kocher, Private standards in the north - effective norms for the south?
- Egle Svilpaite, International corporate social responsibility standards: imposing or imitating business responsibility in Lithuania?
- Ulrike Wanitzek, Legal pluralism under the influence of globalisation: a case study of child adoption in Tanzania
- Anne Peters, Till Förster, & Lucy Koechlin, Towards non-state actors as effective, legitimate, and accountable standard-setters
Thursday, September 24, 2009
Butt: Rectifying International Injustice: Principles of Compensation and Restitution Between Nations
The history of international relations is characterized by widespread injustice. What implications does this have for those living in the present? Many writers have dismissed the moral urgency of rectificatory justice in a domestic context, as a result of their forward-looking accounts of distributive justice. Rectifying International Injustice argues that historical international injustice raises a series of distinct theoretical problems, as a result of the popularity of backward-looking accounts of distributive justice in an international context. It lays out three morally relevant forms of connection with the past, based in ideas of benefit, entitlement and responsibility. Those living in the present may have obligations to pay compensation to those in other states insofar as they are benefiting, and others are suffering, as a result of the effects of historic injustice. They may be in possession of property which does not rightly belong to them, but to which others have inherited entitlements. Finally, they may be members of political communities which bear collective responsibility for an ongoing failure to rectify historic injustice. Rectifying International Injustice considers each of these three linkages with the past in detail. It examines the complicated relationship between rectificatory justice and distributive justice, and argues that many of those who resist cosmopolitan demands for the global redistribution of resources have failed to appreciate the extent to which past wrongdoing undermines the legitimacy of contemporary resource holdings.
This book advances a novel theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively antiliberal idea of an irreducibly collective right of self-governance. The individual and her rights are placed at center stage insofar as political states are judged legitimate if they adequately protect the human rights of their constituents and respect the rights of all others. Yet, the book argues that legitimate states have a moral right to self-determination and that this right is inherently collective, irreducible to the individual rights of the persons who constitute them. Exploring the implications of these ideas, the book addresses issues pertaining to democracy, secession, international criminal law, armed intervention, political assassination, global distributive justice, and immigration. A number of the positions taken in the book run against the grain of current academic opinion: there is no human right to democracy; separatist groups can be morally entitled to secede from legitimate states; the fact that it is a matter of brute luck whether one is born in a wealthy state or a poorer one does not mean that economic inequalities across states must be minimized or even kept within certain limits; most existing states have no right against armed intervention; and it is morally permissible for a legitimate state to exclude all would-be immigrants.
Norm internalization is an objective for trials for violations of international law, which seeks to use the trial to demonstrate to a target audience, usually the community of the defendant, the costs of violating international law, and the stigma of being a violator. The purpose of this exercise is to internalize in that audience a respect for international law and for the norm in question that drives the audience not to repeat the violation in the future. Some scholars have argued that this purpose should be the primary purpose behind international criminal trials. Others have argued that it should, at minimum, be the primary objective of trials for those detained at Guantanamo Bay, with the goal of internalizing an anti-terrorism norm in the Islamic world. Despite the prominence of norm internalization in the literature of international criminal law, however, trials for violations of international law have generally failed to internalize norms in the community of the defendant.
This paper examines these past failures and inductively derives four necessary, but not necessarily sufficient, conditions for the success of norm internalization in the community of the defendant: consistency, selectivity, accessibility, and integration. Meeting these conditions avoids pitfalls that have prevented successful norm internalization in past trials. Application of these conditions to past and future trials at Guantanamo Bay reveals such trials are ill-suited to internalization of an anti-terrorism norm in the Islamic world. Military commissions, which did not include norm internalization as a prominent objective, failed to meet the four conditions. More importantly, future trials of this detainee population, regardless of venue, appear incapable of meeting them. Given these failures, this paper suggests that trials of Guantanamo detainees would more profitably focus on alternative, more attainable trial objectives. These failures also raise real questions about whether norm internalization through trial in the community of the defendant is possible, and if so, when and it what forum it could be successful.
BIICL: The Handling of Detainees in International Military Operations: An Update on the Copenhagen Process
Wednesday, September 23, 2009
- Mahmoud Mohamed Salah, Interrogations sur l'évolution du droit international pénal
- Carine Brière, Le droit international privé européen des contrats et la coordination des sources
- Syméon Karagiannis, À propos de quelques incertitudes concernant la demande de prompte mainlevée de l'immobilisation d'un navire devant le tribunal international du droit de la mer
- Marie-Camille Pitton, L'article 5,1,b dans la jurisprudence franco-britannique, ou le droit comparé au secours des compétences spéciales du règlement (CEE) no 44/2001
The Second Biennial Global Conference of the Society of International Economic Law (SIEL) will be hosted by the University of Barcelona and its IELPO Programme (see http://www.ielpo.org/) at the premises of the University of Barcelona from the 8th July to 10th July 2010.
The conference committee seeks proposals for paper presentations and conference panels under the following terms.
Over the course of the last two decades, the communities of scholars, practitioners and others active in the area of international economic law have grown and diversified in ways that few could have predicted. The field of international economic law now includes a diverse array of participants and covers many new substantive issues. Inevitably, the term international economic law defies easy definition: it is at once a fully integrated part of public international law and an identifiable field in its own right.
This conference provides a venue for exploring many different faces of “international economic law”. Given that the aim of the Society includes fostering research in the area of IEL and promoting cooperation among all parts within the field, the SIEL Global Conference offers a forum for those inside and outside academia to share pedagogical and research methods, as well as to explore greater cooperation among the many different constituencies of the field.
We welcome proposals for papers and panels on any topic related to international economic law, including:
- the three traditional pillars of IEL: trade, investment, and monetary policies;
the relationship between these pillars, and between these pillars and other branches of law;
- the influence of disciplines such as economics, political economy, and others on international economic law;
- comparative international economic law, focussing on how international economic law interacts with laws, institutions and actors at the domestic level;
- the geographies of international economic law, relating to the role of international economic law in different parts of the world;
- the roles that law and legal practices play within international economic governance;
- methods and trends in the teaching and learning of international economic law; and
- interactions between scholars, practitioners, government officials and civil society groups active in international economic law.
We are particularly interested in integrating new voices with more established figures in the field, and therefore welcome works in progress from young or new scholars.
There will be plenary and concurrent panels. Each panel will be moderated and may also have commentators on the papers presented. We anticipate that many of the eminent members of the Founding Executive Council and members of the present Executive Council will attend the conference - as presenters, commentators, and as Key Note Speakers (see http://www.sielnet.org/ for a full listing).
Both paper and panel proposals are due by 15 December 2009.
Paper proposals should include a cover e-mail with full institutional affiliation and contact details, and a paper abstract of no longer than 300 words.
In evaluating proposals, please note that priority will be given to unpublished papers and works in progress. In your proposal, please note whether the paper has already been published, or has been accepted for publication.
Panel proposals should include a panel title, a description of the topics covered during the panel, and a list of suggested panelists (between 4 and 6), including information about the panelists and their specific contribution to the panel, in the form of a paper or presentation title. Suggested panelists must have been consulted by the proposer about the proposal. They must have confirmed their interest in serving on such a panel if it were to be selected. Please take into account the diversity of speakers and opinions reflected in your panel proposal.
Paper and Panel Proposals must be submitted via email to SIEL2010conference@gmail.com, in WORD or PDF formats. Please, write “SIEL 2010 Conference Call for Papers” in the subject of the email.
Results of the selection process are expected to be announced by the end of February 2010. Accepted papers must be submitted by 10 June 2010.
Conference fees and the costs associated with attending the conference will be kept as low as possible. The Society hopes, but cannot guarantee, to be in a position to provide a subsidy of the conference fee for some speakers on the basis of need, but at this time cannot make any guarantees.
Review and Selection Process
Every paper or panel proposal will be reviewed by at least two members of the conference committee, on a double blind and confidential basis.
Conference papers will be made available online prior to the conference. Papers from the Inaugural conference were published online as a working paper series on SSRN's Legal Scholarship Network (see http://www.ssrn.com/link/SIEL-Inaugural-Conference.html).
Please submit inquiries to Colin Picker: Co-Executive Vice President, SIEL (Email: email@example.com).
About the SIEL
The Society of International Economic Law is a new organization for academics and academically-minded practitioners and officials in the field of International Economic Law. The Society is global and inclusive in terms of the expertise and interests of participants, and the many disciplines encompassed by IEL. Among other objectives, the Society also seeks to bring together its members in areas of common interest, as well as supporting academic activities in the field.
The SIEL’s Inaugural Conference, held in Geneva in the summer of 2008, included the presentation of almost 100 papers by IEL scholars, new and established, from around the world, covering the many different facets of the field. For more information of the SIEL Inaugural Conference see http://www.sielnet.org/Default.aspx?pageId=108611
For more information about the SIEL, please visit: http://www.sielnet.org/
The recent, ongoing crisis of the world financial system, but also other global problems such as climate change or the spread of weapons of mass destruction have highlighted the susceptibility of a globalized world to equally globalized crises.
In October 2009, an interdisciplinary workshop held at the Georg-August-University Göttingen will explore the phenomenon of global crises both theoretically and empirically. In particular the workshop will use the global financial crisis as paradigm to analyze different strategies for preventing and solving global crises, ranging from international approaches to regional initiatives and action taken on the national level. However, the workshop is also meant to go beyond the financial crisis, which is only one possible paradigm.
Tuesday, September 22, 2009
- Theo van Boven, The Anti-Racism Durban Review Conference
- Daragh Murray, Freedom of Expression, Counter-Terrorism and the Internet in Light of the UK Terrorist Act 2006 and the Jurisprudence of the European Court of Human Rights
- Sergey Golubok, Right to Free Elections: Emerging Guarantees or Two Layers of Protection?
In the first decade of the twenty-first century, the Supreme Court has decided a series of high-profile cases related to international law. In Sosa v. Alvarez-Machain (2004), the Court considered the federal judiciary's role in applying customary international law under the Alien Tort Statute. In Lawrence v. Texas (2003) and Roper v. Simmons (2005), the Court used international law as a tool for helping to resolve difficult constitutional issues arising under the Eighth and Fourteenth Amendments. In Hamdan v. Rumsfeld (2006), the Court grappled with questions involving the proper interpretation of Common Article 3 of the Geneva Conventions. In Sanchez-Llamas v. Oregon (2006) and Medellin v. Texas (2008), the Court confronted questions involving the U.N. Charter, the Vienna Convention on Consular Relations and the domestic effects of judgments of the International Court of Justice.
Each of these decisions produced fairly strident dissents. In almost every case, the dissent accused the majority of departing significantly from established precedents. During this conference, scholars will evaluate recent Supreme Court decisions involving international law against the backdrop of eighteenth, nineteenth and twentieth-century precedents and historical developments. The main questions to be addressed are: In what respects do the twenty-first century decisions represent a break from the past? In what respects are those decisions consistent with earlier practice and precedents? From a historical perspective, how can we account for both the continuity and the discontinuity?
The first day of the conference will focus on the history of international law in the Supreme Court from 1789 to 2000. The second day will focus on key Supreme Court cases decided in the past decade, evaluating those cases against the backdrop of the historical analysis developed on day one. Revised versions of the conference papers will be collected in a book published by Cambridge University Press.
- Margaret A. Young, Fragmentation or interaction: the WTO, fisheries subsidies, and international law
- Robert Wolfe, The special safeguard fiasco in the WTO: the perils of inadequate analysis and negotiation
- James J. Fetzer, Inference for econometric modeling in antidumping, countervailing duty and safeguard investigations
- Marc L. Busch, Eric Reinhardt, & Gregory Shaffer, Does legal capacity matter? A survey of WTO Members
Depuis plusieurs années, on assiste à un développement considérable du droit international : de plus en plus de domaines sont régis par ce droit, des règles de plus en plus nombreuses apparaissent, les jugements et les études scientifiques se multiplient. Dans ce contexte, il apparaît illusoire de prétendre connaître le détail de toutes les règles existantes, même dans un domaine particulier, qu’il s’agisse du droit des Nations unies, des droits de la personne, du droit de la mer, du droit international humanitaire, ou encore du droit économique international. C’est pourquoi il paraît particulièrement important de disposer d’une méthode qui permette d’acquérir, de maîtriser et d’utiliser de nouvelles connaissances. Pourtant, aucun ouvrage de langue française n’a, jusqu’ici, été publié en méthodologie du droit international.
Ce texte a pour ambition de combler cette lacune ; il a été conçu à partir du cours de « méthodologie de la recherche en droit international », dispensé à l’Université libre de Bruxelles depuis 1997. Après avoir mis l’accent sur la diversité des approches méthodologiques, en les mettant en lien avec les options théoriques qui les sous-tendent, l’ouvrage comprend un chapitre centré sur la construction scientifique d’un sujet, l’expérience montrant que les difficultés d’une étude sont souvent dues à une conceptualisation préalable insuffisante. Sont ensuite exposés des problèmes méthodologiques plus spécifiques relatifs aux sources du droit international - avec un accent particulier sur la coutume - ainsi qu’à l’interprétation et à l’application de ce droit. Un dernier chapitre, plus classique, reprend quelques conseils relatifs à la rédaction d’un travail écrit.
Monday, September 21, 2009
- V.S. Seshadri, Evolution in India’s Regional Trading Arrangements
- Umut Turksen, The WTO Law and the EC’s GSP+ Arrangement
- Rolf H. Weber & Mirina Grosz, Governments’ Interventions into the Real Economy under WTO Law Revisited: New Tendencies of Governmental Support of the Automobile Industry
- Batshur Gootiiz & Aaditya Mattoo, Services in Doha: What’s on the Table?
- Jun Kazeki, Permanent Group of Experts under the SCM Agreement
- Armin Steinbach, EC Liability for Non-compliance with Decisions of the WTO DSB: The Lack of Judicial Protection Persists
- David Collins, Health Protection at the World Trade Organization: The J-Value as a Universal Standard for Reasonableness of Regulatory Precautions
- Julia O'Brien, The Equity of Levelling the Playing Field in the Climate Change Context
- Ludivine Tamiotti & Vesile Kulaçoğlu, National Climate Change Mitigation Measures and Their Implications for the Multilateral Trading System: Key Findings of the WTO/UNEP Report on Trade and Climate Change
- Jan Paulsson, International Arbitration is not Arbitration
- James Hope, Why Choose Stockholm: Reflections of an English Lawyer After Two Years of Practising International Arbitration in Sweden
- Peter Hillerström, Emergency and Pre-Tribunal Arbitral Relief: Current Approaches of the Key Arbitral Institutions
- Linn Bergman, An Update on SCC Arbitration Cases
- Special Forum: Public Policy in International Arbitration
- Hans G. Bagner, Preface: Public Policy: Still the Unruly Horse
- Piero Bernardini, The Scope of Review in Annulment Proceedings
- Lord Goldsmith, An Introduction to International Public Policy
- Jeffrey M. Hertzfeld, The Common Law Approach to Public Policy in International Arbitration
- Michael Kwang & Shaun Lee, Public Policy as Ground for Annulment of or Non-recognition of Enforcement of Arbitral Awards in East Asia
- Stephen Jagusch, Issues of Substantive International Public Policy
- Pierre A. Karrer, Public Policy in Swiss International Arbitration Law: For Once, Adjectives Make a Difference
- Richard H. Kreindler, Standards of Procedural International Public Policy
- David W. Rivkin, The Public Policy Exception to the Enforcement of International Arbitral Awards
This paper, published as part of symposium on Missouri v. Holland, explores how the circumstances of that case relate to modern criticisms of Congress' Necessary and Proper power and the doctrine of non-self-executing treaties. Focusing on some of the original concerns - for example, the need for further domestic implementation by Canada (and not, to the same degree, by the United States), the need for spending legislation, and the provision of criminal penalties - unsettles not only the understanding of the Supreme Court's decision, but also more recent critiques of the doctrines with which it has long been associated.
- Sherzod Shadikhodjaev, Trade Integration in the CIS Region: A Thorny Path Towards a Customs Union
- Marc L. Busch & Krzysztof J. Pelc, Does the WTO Need a Permanent Body of Panelists?
- Won-Mog Choi, Aggressive Regionalism in Korea–U.S. FTA: The Present and Future of Korea's FTA Policy
- Gillian Moon, Trade and Equality: A Relationship to Discover
- Doaa Abdel Motaal, Reaching REACH: The Challenge for Chemicals Entering International Trade
- Ping Wang, China's Accession to the WTO Government Procurement Agreement—Challenges and The Way Forward
- Annamaria La Chimia & Sue Arrowsmith, Addressing Tied Aid: Towards a More Development-Oriented WTO?
- Paul-Erik Veel, Carbon Tariffs and the WTO: An Evaluation of Feasible Policies
Sunday, September 20, 2009
Jurisdictional competition is a relatively new but increasingly important phenomenon in European and international law. The ongoing proliferation of various international courts and tribunals results in a multiplication of judgments and arbitral awards, which potentially conflict with each other. Moreover, the ever expanding exclusive jurisdiction of the ECJ into international law issues further exacerbates and complicates the problem by mixing European law principles into international law.
The selected cases examined in this book, which cover different areas of international and European law, illustrate the methods applied by various international courts and tribunals to deal with overlapping jurisdictions.
Since any formal hierarchy or coordination between the various international courts and tribunals is lacking, it is argued that only soft law methods, such as the application of comity, in particular the Solange-method, appears to be a useful tool to deal with the negative effects associated with jurisdictional competition.