This book discusses the critical legal issues raised by the US responses to the terrorist threat, analyzing the actions taken by the Bush administration during the so-called "war on terrorism" and their compliance with international law. Thomas McDonnell highlights specific topics of legal interest including torture, extra-judicial detentions and the invasions of Afghanistan and Iraq, and examines them against the backdrop of terrorist movements which have plagued Britain and Russia. The book extrapolates from the actions of the USA, going on to look at the difficulties all modern democracies face in trying to combat international terrorism.
This book demonstrates why current counter-terrorism practices and policies should be rejected, and new policies adopted that are compatible with international law. Written for students of law, academics and policy-makers, the volume demonstrates the dangers that breaking international law carries in the "war on terrorism".
Saturday, October 31, 2009
McDonnell: The United States, International Law and the Struggle against Terrorism
Friday, October 30, 2009
Mayeda: Investing in Development: The Role of Democracy and Accountability in International Investment Law
This article explores whether international investment agreements (IIAs) have the potential to impede democratic expression and, as a result, hinder sustainable development. The author first demonstrates that democracy plays an essential role in the promotion of sustainable development and provides a normative (rather than procedural) definition of democracy. The three ways in which IIAs can limit democracy are then addressed. First, they can limit the policy space of developing countries. This is demonstrated through an analysis of how types of provisions commonly found in IIAs can negatively affect policy flexibility. Second, democracy can be indirectly limited through the decisions of international investment tribunals, which give little deference to the decisions of domestic democratic forums. Third, democracy can be undermined if foreign investors are not accountable to any democratic government. In this regard, it is necessary for IIAs to impose obligations on home states and investors to ensure that investors behave in socially responsible ways. The article concludes with suggestions for ways in which developing countries can structure IIAs to support democracy rather than detract from it.
Kuppuswamy: The International Legal Governance of the Human Genome
The human genome is a well known symbol of scientific and technological progress in the 21st century. However, concerns about the exacerbation of inequalities between the rich and the poor, the developing and the developed states, the healthy and the unhealthy are causing problems for the progress of scientific research. The international community is moving towards a human rights approach in addressing these concerns.
Such an approach will be piecemeal and ineffective so long as fundamental issues about economic, social and cultural rights, the so-called second generation of human rights, are not addressed. This book argues that, in order to be able to meaningfully apply a human rights framework to the governance of the human genome, the international human rights framework should be based on a unified theory of human rights where the distinction between positive and negative rights is set aside.
The book constructs a common heritage concept with the right to development at its core and explores the content of the right to development through rational human rights theory. It is argued that the notion of property rights in the human genome should be placed within the context of protecting human rights, including the right to development. The concept of common heritage of humanity, contrary to the widely held belief that it is in opposition to patenting of gene sequences, supports human rights-based conceptions of property rights.
This book fills a gap in the literature on international legal governance of the human genome will provide an essential reference point for research into the right to development, development issues in bioethics, the role of international institutions in law making and research governance.
Fromuth: The European Court of Justice Kadi Decision and the Future of UN Counterterrorism Sanctions
Tansey: Regime-Building: Democratization and International Administration
This book is a study of regime change in the context of international administration, where the United Nations and other multilateral organizations hold temporary executive authority at the domestic level. Work on the politics of state-building has highlighted how these administration operations can influence nearly every aspect of politics in the country or territory in which they are deployed. This book concentrates in particular on the 'regime-building' practices of these missions, and examines the aims and influences of international administrations in the area of democratic development, as well as their ultimate impact on the process of regime change. Through a comparative analysis of events in Bosnia, Kosovo and East Timor, the book demonstrates how external actors assume positions of power conventionally held by domestic elites, and in so doing gain the ability to affect democratic development in ways unavailable to international actors in more conventional settings. In particular, the case studies highlight the ways in which the democracy promotion objectives of international administrators can have both positive and negative effects on democratization processes, with the presence of international authorities helping to rule out non-democratic options in some areas, while at times undermining democratic development in others. The book identifies the key international actors involved, highlights the mechanisms of influence available to them in these contexts, and explores the crucial mediating role of domestic actors and structures.
Thursday, October 29, 2009
Rittberger: Wer regiert die Welt und mit welchem Recht?
Neben Staaten sind heute eine ganze Reihe weiterer politikmächtiger Akteure wie transnationale Konzerne, weltbürgerschaftliche Aktionsgruppen, transnationale Terrorgruppen und internationale Bürokratien zu identifizieren, die das Weltgeschehen entscheidend beeinflussen können. Dies führt dazu, dass selbst mächtigste Staaten wie die USA zwar noch in der Lage sind, im Alleingang Probleme in der Welt anzugehen, sich aber außer Stande sehen, diese auch alleine zu lösen. Ein Weltregieren durch einen Hegemon oder ein neues Imperium, wie es bis vor kurzem noch diskutiert wurde, erwies sich als eine unzutreffende Erwartung. Damit muss die Frage, wer die Welt regiert, neu beantwortet werden. Der Problemdruck, der den Risiken des global vorherrschenden wissenschaftlich-technischen Lebensmodells entspringt, macht den Bedarf nach einer Ordnung stiftenden Weltpolitik und damit nach Weltregieren in mehr und mehr Politikfeldern immer dringlicher. Doch nicht nur die Probleme, sondern auch die Entscheidungsprozesse werden angesichts der Vielfalt politikmächtiger Akteure und deren grenzüberschreitendem Handeln immer unübersichtlicher. Der Band will zum einen mit Blick auf die realen Entscheidungsverfahren herausarbeiten, wer heute die Welt regiert. Da sich begründet postulieren lässt, dass die Beteiligung von Betroffenen die Legitimität von Entscheidungen und Institutionen erhöht, ist zum zweiten zu fragen, mit welchem Recht ausgewählte Akteure Entscheidungsmacht wahrnehmen. Zum dritten wird ein Blick in die Zukunft erfolgen und die dafür vorgeschlagenen Modelle des Weltregierens vorgestellt sowie deren Realisierungschancen ausgelotet.
ICJ: Honduras Institutes Proceedings Against Brazil
New Volume: Anuario Mexicano de Derecho Internacional
- Luigi Ferrajoli, Guerra y terrorismo internacional. Un análisis del lenguaje político
- Alejandro Ramelli Arteaga, El derecho internacional humanitario ante la Corte Interamer icana de Derechos Humanos
- José Luis Vallarta Marrón, El derecho inmanente a la legítima defensa individual o colectiva en caso de ataque armado. ¿Se justifica una interpretación extensiva para incluir medidas preventivas y punitivas? Una visión israelí
- Rene Uruena, Expertise and Global Water Governance: How to Start Thinking about Power over Water Resources
- Sergio Peña-Neira, Balancing Rights and Obligations in Sharing Benefits from Natural Genetic Resources: Problems, Discussions and Possible Solutions
- Óscar Cruz Barney, El control constitucional de las resoluciones antidumping y los paneles del artículo 1904 del Tratado de Libre Comercio de América del Norte
- Javier Dondé Matute, El derecho internacional y su relevancia en el sistema jurídico mexicano. Una perspectiva jurisprudencial
- Xiomara Lorena Romero Pérez, El reconocimiento parcial de la responsabilidad del Estado colombiano en el sistema interamericano de derechos humanos. Casos Mapiripán, Ituango y La Rochela
- Pablo César Revilla Montoya, Necesidad de intervenir militarmente en Sudán-Darfur para salvaguardar los derechos humanos de sus pobladores
- Alberto Puppo, Lutte internationale contre le terrorisme, sécurité internationale et droit fondamentaux. Les pirouettes des juges européens entre creation de hiérarchies normatives improbables et sacrifice des garanties juridictionnelles les plus élementaires
- Efrén Gustavo Marqués Rueda, El acto y crimen de agresión en el derecho internacional público y su repercusión en las relaciones políticas internacionales
- Alejandro Rodiles, La fragmentación del derecho internacional. ¿Riesgos u oportunidades para México?
- Rodolfo Cruz Miramontes, El Anexo 2 de la Organización Mundial de Comercio y la participación de los particulares a través del amicus curiae
- David Enríquez & Patricia Uribe, Restos náufragos y derecho internacional. La Convención de Nairobi en perspectiva
Betts: Protection by Persuasion: International Cooperation in the Refugee Regime
States located near crisis zones are most likely to see an influx of people fleeing from manmade disasters; African states, for instance, are forced to accommodate and adjust to refugees more often than do European states far away from sites of upheaval. Geography dictates that states least able to pay the costs associated with refugees are those most likely to have them cross their borders. Therefore, refugee protection has historically been characterized by a North-South impasse. While Southern states have had to open their borders to refugees fleeing conflict or human rights abuses in neighboring states, Northern states have had little obligation or incentive to contribute to protecting refugees in the South.
In recent years, however, the Office of the United Nations High Commissioner for Refugees (UNHCR) has sought to foster greater international cooperation within the global refugee regime through special conferences at which Northern states are pushed to contribute to the costs of protection for refugees in the South. These initiatives, Alexander Betts finds in Protection by Persuasion, can overcome the North-South impasse and lead to significant cooperation. Betts shows that Northern states will contribute to such efforts when they recognize a substantive relationship between refugee protection in the South and their own interests in such issues as security, immigration, and trade. Highlighting the mechanisms through which UNHCR has been able to persuade Northern states that such links exist, Protection by Persuasion makes clear that refugee protection is a global concern, most effectively addressed when geographic realities are overridden by the perception of interdependence.
Chaisse: Ensuring the Conformity of Domestic Law with World Trade Organisation Law - India as a Case Study
The World Trade Organisation (WTO), established in 1995, provides a contractual framework within which Member States undertake to implement regulations and legislation for foreign trade which cover a wide range of sectors. The purpose of this study to examine why and how WTO rules tend to be effectively implemented and how much it has changed Indian laws. WTO-conformity of Indian law is made compulsory for two reasons. First, by saying that, “each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements”, the Agreement establishing WTO affirms the obligation for all the Members to ensure such compliance. The legal consequences of such an obligation are discussed in regards with effective adaptation of Indian domestic law. Secondly, WTO is equipped with a new dispute settlement system which controls the correct compliance of domestic law with WTO-conformity. The contribution of this mechanism in ensuring WTO-conformity is evaluated, in regards with India implication in disputes. On the theoretical aspect this study identifies the particular characteristics proper to the WTO which ensure implementations to its law and obliges India as other Members to comply with the international standard. On the practical aspect, it gives an overview of the recent innovations or changes in Indian laws which are presently applicable and simultaneously to assess India integration in international trade governance.
Wednesday, October 28, 2009
New Issue: Mealey's International Arbitration Report
Subotic: Hijacked Justice: Dealing with the Past in the Balkans
What is the appropriate political response to mass atrocity? In Hijacked Justice, Jelena Subotic traces the design, implementation, and political outcomes of institutions established to deal with the legacies of violence in the aftermath of the Yugoslav wars. She finds that international efforts to establish accountability for war crimes in the former Yugoslavia have been used to pursue very different local political goals. Responding to international pressures, Serbia, Croatia, and Bosnia have implemented various mechanisms of “transitional justice”—the systematic addressing of past crimes after conflicts end. Transitional justice in the three countries, however, was guided by ulterior political motives: to get rid of domestic political opponents, to obtain international financial aid, or to gain admission to the European Union. Subotic argues that when transitional justice becomes “hijacked” for such local political strategies, it fosters domestic backlash, deepens political instability, and even creates alternative, politicized versions of history.
That war crimes trials (such as those in The Hague) and truth commissions (as in South Africa) are necessary and desirable has become a staple belief among those concerned with reconstructing societies after conflict. States are now expected to deal with their violent legacies in an institutional setting rather than through blanket amnesty or victor's justice. This new expectation, however, has produced paradoxical results. In order to avoid the pitfalls of hijacked justice, Subotic argues, the international community should focus on broader and deeper social transformation of postconflict societies, instead on emphasizing only arrests of war crimes suspects.
New Issue: Leiden Journal of International Law
- Andrea Bianchi, The International Regulation of the Use of Force: The Politics of Interpretive Method
- Zoran Oklopcic, Populus Interruptus: Self-Determination, the Independence of Kosovo, and the Vocabulary of Peoplehood
- Hague International Tribunals: International Court of Justice
- Thomas Buergenthal, Rosalyn Higgins: Judge and President of the International Court of Justice (1995–2009)
- Hague International Tribunals: International Criminal Courts and Tribunals
- Kai Ambos, Critical Issues in the Bemba Confirmation Decision
- Joakim Dungel, Defining Victims of Crimes against Humanity: Martić and the International Criminal Court
- Hague International Tribunals: Special Court for Sierra Leone
- Teresa A. Doherty, The Application of Human Rights Treaties in the Development of Domestic and International Law: A Personal Perspective
- Joseph F. Kamara, Preserving the Legacy of the Special Court for Sierra Leone: Challenges and Lessons Learned in Prosecuting Grave Crimes in Sierra Leone
- Current Legal Developments
- Hannah Tonkin, Common Article 1: A Minimum Yardstick for Regulating Private Military and Security Companies
- Kerstin Mechlem, Moving Ahead in Protecting Freshwater Resources: The International Law
Commission’s Draft Articles on Transboundary Aquifers
- Allehone Mulugeta Abebe, Displacement of Civilians during Armed Conflict in the Light of the Case Law of the Eritrea-Ethiopia Claims Commission
New Issue: International Community Law Review
- James Thuo Gathii & Ibironke Odumosu, International Economic Law in the Third World
- James Thuo Gathii, War's Legacy in International Investment Law
- Jalia Kangave, The Dominant Voices in Double Taxation Agreements: A Critical Analysis of the Dividend Article in the Agreement between Uganda and the Netherlands
- Daniel Wanjau Muriu, Third World Resistance to International Economic and Structural Constraints: Assessing the Utility of the Right to Health in the Context of the TRIPS Agreement
McGivern: Chinese Import Restrictions on Publications and Entertainment Products Found to be WTO Inconsistent
Workshops: Gardiner, Okediji, Slovic
Ruth Okediji (Univ. of Minnesota - Law) will give a talk today at the Harvard Law School International Law Workshop.
Paul Slovic (Univ. of Oregon - Psychology) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on Interdisciplinary Approaches to International Law on "Can International Law Stop Genocide When Our Moral Intuitions Fail Us?" Jean-Marie Guéhenno (formerly, Under-Secretary-General for Peacekeeping Operations, United Nations; New York Univ. - Center on International Cooperation) and Ryan Goodman (New York Univ. - Law) will be the discussants.
Tuesday, October 27, 2009
Call for Papers: The Financial Crisis and Global Regulatory Governance
The basic models of market regulation that have prevailed during the XX century had been forged in reaction to the crisis of 1929. The responses given to that economic emergency, initially conceived as transient, have deeply shaped the relations between the market and the State for more than fifty years. In the United States, the New Deal has immensely expanded the reach of the public regulatory powers in economic and social matters and has led to the introduction of new modes of interaction between the citizens and the agencies through the 1946 Administrative Procedure Act. Similarly, in Europe, the crisis has expanded the programs of public assistance and the instruments of central planning, thereby subjecting the market to a significant State control.
At the international level, the Bretton Woods institutions (IMF, WTO, World Bank) were created after WWII to address various structural aspects of the 1929 crisis as well as states’ “beggar thy neighbor” policy responses to it, and prevent a recurrence of a prolonged global depression.
In the last thirty years, widespread convergent processes of liberalization, privatization and internationalization have eroded the State control over the economy and altered the balance between the public and the private sphere. State authorities have begun to lose their centrality, to the advantage of private organisms and supranational institutions. Many aspects of state regulation have been regarded as ineffective or even counterproductive, and have been complemented or partially superseded by private law approaches, by private regulatory initiatives and/or by self-regulation.
However, the recent financial crisis has subverted the trend. States have reasserted enormous powers over the market and its actors. On one hand, the bailout of banks and financial institutions – considered “too big to fail” – has paved the way to the reintroduction of public tools to regulate and shape the economy. Some of the crucial developments concern specifically the financial sector, which is increasingly subject to regulatory scrutiny and expanded controls. . Are these tools comparable to techniques used earlier? Though designed for temporary purposes, are they destined to endure and live through the crisis, as happened after the Great Depression? What similarities are there between problems and remedies in earlier crises in different economies, including the general economic crisis which began in 1929, and the current epoch?
The crisis has also shown the limits of a State-centered regulatory model, inducing the national authorities to intensify their cooperation. At the same time, it has tested the ability of Bretton Woods institutions and other international and supranational consultative or regulatory regimes to deal with the crisis as such or to deal with measures taken by states to limit damage to domestic production and employment. At the global level, as in Europe and other regions, initiatives have been launched to reform the financial institutional setting and expand the reach of their powers. Just to mention one example, the Financial Stability Forum has been institutionalized as Financial Stability Group, in order to fill an evident gap in global regulatory governance. How successful will this and similar attempts be? Is it possible to “redeem” the financial sector from its “vices”? Is the lack of rules the real problem? And is the regulatory system ready to take a sustained statist turn?
The 6th Viterbo Gal Conference will provide the opportunity to present advanced research projects on the financial crisis and on global regulatory measures to deal with it, including states’ domestic policy responses.. A global administrative law approach will provide the main analytical tools: accordingly, the papers should focus on the structure of the global and regional regulatory governance relating to finance, trade (including questions of state aids) and related aspects of the crisis; on the powers thereby exercised; on their effectiveness and accountability, or on critical or conceptual perspectives on these issues. Given the complexity of the subject, an interdisciplinary exchange will be favoured. Papers may, thus, also address the topic by adopting an historical, economic and/or international relations approach, and/or a legal approach. Historical approaches could include an analysis of responses to past global economic and financial crises.
2. Provisional program
The seminar will be held in Viterbo (Italy), at the Tuscia University, on June 11-12, 2010. Both junior and senior scholars are encouraged to submit a paper proposal. The selected papers will constituted the basis for a thoroughly discussion on the strategies and techniques adopted to tackle the crisis. The overall aim is not only to assess the consistency of the scientific categories so far adopted, but also to define working tools that may pave the way to a more effective and forward-looking regulatory reaction to the crisis.
3. Call for papers
The advisory group for the conference invites submissions of case study papers on the conference themes outlined below.
The abstract must be a minimum of 150 and no more than 500 words. The deadline for submission is December 20, 2009. Abstracts must include an indication of the major arguments to be made as well as a statement of the issue area of the paper, and they should state the proposed title for the paper, as well as the postal and email addresses and contact telephone of the author. Abstracts (in PDF, RTF or Word format) must be sent to firstname.lastname@example.org. A notification of reception will be sent immediately after.
The selection panel of the conference committee will consider all abstracts received by the submission deadline and will accept the most significant in relation to the issue of the seminar. The notification for paper acceptance is due on January 20, 2010.
The submission date for the full paper is no later than May 10, 2010. The final version of the paper must be no longer than 8,000 words (footnotes included) and must be sent to ViterboGalSeminar@gmail.com (PDF, RTF or Word format).
For detailed information please contact: ViterboGalSeminar@gmail.com
Rome, October 14, 2009
Broude: It's Easily Done: The China-Intellectual Property Rights Enforcement Dispute And the Freedom of Expression
This paper examines the implications of the WTO China-IPR Enforcement Case for the relationship between human rights law and trade-related intellectual property law. It shows that despite the theory whereby international trade law can spontaneously support the freedom of expression and possibly other human rights, the parties and the Panel were in practice oblivious to the human rights context of the dispute. In the WTO, human rights considerations will be integrated with international trade law (and IP law within it) only if a party makes explicit arguments to this effect, and a Panel opts to consider such arguments on their merits, not through issue avoidance.
New Issue: International Journal of Marine and Coastal Law
- Robin Churchill, Dispute Settlement under the UN Convention on the Law of the Sea: Survey for 2008
- David Leary & Miguel Esteban, Climate Change and Renewable Energy from the Ocean and Tides: Calming the Sea of Regulatory Uncertainty
- Mel Weber, Defining the Outer Limits of the Continental Shelf across the Arctic Basin: The Russian Submission, States' Rights, Boundary Delimitation and Arctic Regional Cooperation
- Edwin Egede, African States and Participation in Deep Seabed Mining: Problems and Prospects
New Issue: International Criminal Law Review
- Mohamed Elewa Badar, Islamic Criminal Justice in the 21st Century
- Farhad Malekian, The Homogeneity of International Criminal Court with Islamic Jurisprudence
- Ray Murphy & Mohamed M. El Zeidy, Prisoners of War: A Comparative Study of the Principles of International Humanitarian Law and the Islamic Law of War
- Ilias Bantekas, The Disunity of Islamic Criminal Law and the Modern Role of Ijtihād
- Ahmed Hamdy Tawfik, The Concept of Crime in the Afghan Criminal Justice System: The Paradox between Secular, Tradition and Islamic Law: A Viewpoint of an International Practitioner
- Silvia Tellenbach, Aspects of the Iranian Code of Islamic Punishment: The Principle of Legality and the Temporal, Spatial and Personal Applicability of the Law
- Abdullah Saad Alarefi, Overview of Islamic Law
New Issue: International Community Law Review
- Yasuhiro Shigeta, The ECJ's 'Hard' Control over Compliance with International Environmental Law: Its Procedural and Substantive Aspects
- Maria Chiara Malaguti, Sovereign Insolvency and International Legal Order
- Anastasios Gourgourinis, Delineating the Normativity of Equity in International Law
Monday, October 26, 2009
Conference: Private International Regulation and Public Supervision
International lawmaking and regulation is a process in which private parties fulfil a more important role than is often visible. They often regulate their international affairs in standard contracts or through international sectoral norms and therefore may be missed by the public eye; international media and politics. Without the involvement of public actors their regulation is often highly effective but their legitimacy is limited to the scope of the committed parties within the sector. As long as the business is going well this kind of self-regulation may be the most time- and cost- effective method. However, these mechanisms may need public supervision in situations when: technical aspects of contracts are so complicated that subsequently in-depth experts need to be more structurally involved to stimulate sustainable international dispute resolution; damage is caused to third parties (often citizens) outside the framework that provides the international private rules; the company operates in states with an ineffective regulatory system where private norms are hardly applicable or enforceable.
Therefore, serious accountability gaps remain. The question therefore is how the government should intervene. On the one hand, to what extent should and could private parties fulfil the function of international regulator? On the other hand, the focus should be on how to create effective supervision while still benefitting from the effectiveness of private regulation. In the above situations new international consensual or legal instruments need to be created.
Havel: Beyond Open Skies: A New Regime for International Aviation
Increasingly, governments everywhere are backing away from their earlier micromanagement of international aviation, allowing carriers to tap market opportunities wherever they can be found and with far more ease and responsiveness. Accordingly, the industry will inevitably generate new paradigms of competitive market behaviour. This timely book presents the fresh thinking needed on an appropriate legal and policy architecture to govern the industry in the decades ahead. It continues the pursuit of the topic considered in the author’s earlier work In Search of Open Skies: the contours of a legal regime that should govern international scheduled air passenger (and relatedly, air cargo) transport.
Beyond Open Skies offers a systematic comparative analysis of the legal and policy dimensions of airline deregulation by federal fiat in the United States and by supranational collaboration in the European Union. The book draws upon a variety of sources, including very recent developments in U.S. and EC international aviation law, policy, and diplomacy, to propose a genuine multilateral air transport system. It examines the potential of the ‘open skies’ initiative, in the aftermath of the new U.S./EC air transport agreement, to inspire a genuine globalization of the world’s air transport industry in such crucial aspects as the following: cabotage; ownership and citizenship requirements; route selection; airline identity; capacity; pricing regimes; competition and public aid; regulatory harmonization; labor laws; provisions for charter and/or cargo transportation; fair operation of and access to computer reservations systems; authorization of code-sharing arrangements; alliances and antitrust immunity; and dispute resolution.
A very special feature of the book is its wealth of hard-to-find but vital scholarship and source material, never before collected so conveniently in one place, furnishing a rich and satisfying context that will enable readers to understand better the forces at work during these momentous realignments among carriers, regulators, and markets.
Recognizing that the current global air transport regulatory system is inadequate to the commercial demands of the modern industry, the author shows clearly that the imperatives for its reform transcend domestic debates about incremental public intervention in the business of providing air transport. The book’s in-depth analysis of how the law and policy of U.S. and EC airline deregulation can be integrated into the framework for a second-stage U.S./EC air transport agreement builds upon the efforts of government officials, industry stakeholders, and academic commentators who have encouraged a progressive liberalization of air transport. Beyond Open Skies is sure to take its place as the most comprehensive and valuable reference that exists on the complex diplomacy currently defining the future of international aviation.
d'Aspremont: Hart and Postmodern Positivism in International Law
This article argues that, in the context of international law, Hart can really be considered a post-modern positivist. Hart has not only refined the source thesis of Hobbes, Bentham and Austin by shedding the command-based understanding of law. Hart has also overcome the difficulties of Kelsen’s hypothetical grundnorm by devising a concept of validity based on social facts. In doing so, Hart has paved the way for a modernization of legal positivism which is of particular relevance in international law. The article submits that the social thesis of Hart has generally been overlooked by international legal scholars, for they have not come to terms with the fact that Hart demoted international law to a very primitive set of rules. The only aspect of Hart doctrine to which international legal scholars really paid attention is his famous distinction between primary and secondary rules – a dichotomy which he did not devised himself but borrowed from other authors like Ihering. It is argued in this paper that international legal scholars should be more amenable to Hart’s social thesis because it offers some theoretical solutions to the contemporary objections to legal formalism, and in particular to those elaborated by scholars affiliated with critical legal studies. Hart’s (modest) use of ideas of Wittgenstein and other scholars of the Philosophy of language, although being insufficient to capture all the special and subtle features of domestic legal system, provides insighful conceptual tools for a modernization of the source thesis in international law.
New Issue: International Journal of Human Rights
- Amanda DiPaolo, Procedure over substance
- Peter Langford, Extradition and fundamental rights: the perspective of the European Court of Human Rights
- Palestinian economic (under)development: the hurdles Bashar H. Malkawi
- Ravina Shamdasani, The Gujarat riots of 2002: primordialism or democratic politics?
- Ovunda V. C. Okene, Derogations and restrictions on the right to strike under international law: the case of Nigeria
- Patricia Weber, Too political or not political enough? A Foucauldian reading of the Responsibility to Protect
- Dimitris Xenos, The human rights of the vulnerable
- Sonja Grover, A response to Bagaric and Allan's ‘The Vacuous Concept of Dignity’
Conference: Corporate Complicity in Human Rights Violations
Participants in the conference include legal experts in business and human rights, business executives, civic leaders and academics. The discussion will focus on the relationship between international law and corporations, the legal risks associated with corporate complicity in human rights violations, soft law mechanisms, business and human rights due diligence and the corporate responsibility to respect human rights. The conference will also present the tentative conclusions of the joint Lauterpacht Centre/First Africa project on Corporate Complicity in Human Rights violations.
Kuo: Inter-Public Legality or Post-Public Legitimacy? A Response to Professor Kingsbury’s Conception of Global Administrative ‘Law’
Departing from the Westphalian tradition, global administrative law is seen as arising from the pragmatic needs of transboundary regulation underpinned by a normative aspiration to rule of law beyond national boundaries. Unhinged from state consent, however, it faces a twofold challenge: legality and legitimacy. The former centers on the distinction between law and non-law; the latter is concerned with the legitimacy of global administrative law. Benedict Kingsbury’s "The Concept of ‘Law’ in Global Administrative Law" (20 EJIL 23 (2009)) attempts to answer this twofold challenge by centering the new paradigm of international law, as epitomized by global administrative law, on the notion of publicness. First, he pins its solution on the substantive concept of publicness. Second, he portrays global administrative law as an inter-public law, governing the relationship among regulatory regimes in accordance with the value of publicness. his Response argues that Kingsbury’s publicness-centered conception of international law does not resolve the challenges facing global administrative law. Rather, his version of global administrative law does not so much correspond to an inter-public law as points to a post-public conception of legitimacy, reflecting the trend of addressing the issue of fragmentation by tacitly adopting the strategy of privatization in global administrative law scholarship.
Workshops: Lee, Weiler
Joseph Weiler (New York Univ. - Law) will give a talk today at the UCL Faculty of Laws and International Law Association (British Branch) International Law Seminar on "WTO: The Appellate Body and Its Hermeneutics: How Long Will Its 'Infant's Disease' Last?"
Sunday, October 25, 2009
New Issue: Journal of International Maritime Law
- Vincent J.G. Power, EU competition law on sharing information between competitors
- Eric Røsæg, Conflicts of Conventions in the Rotterdam Rules
- Thomas Blunden, The legal status of the Arctic under contemporary international law: an Antarctic regime or poles apart?
- Tony George Puthucherril, Legal recognition of electronic ocean bills of lading under Indian law