The topic of the parallel applicability of International Human Rights Law and International Humanitarian Law has created a lively debate. The present article does not deal with the question of whether these two bodies of law apply at the same time. It rather takes this dominant position as granted and, instead, focuses on the humanitarian impact of their concurrent application, based on the weaknesses of these two legal regimes. However, even when they co-apply, some potential lacunas still remain which impede the protection of all human beings. Consequently it becomes fairly clear that humanitarian and human rights law should evolve in order to address these problems and the last part of this article suggests some possible means in this regard.
Saturday, January 30, 2010
Mastorodimos: The Utility and Limits of International Human Rights Law and International Humanitarian Law’s Parallel Applicability
Friday, January 29, 2010
This article addresses a number of important international legal issues raised by Iran’s ongoing violation of its obligations under the Nuclear Non-Proliferation Treaty (NPT) and its Nuclear Materials Safeguards Agreement with the International Atomic Energy Agency (IAEA). It also offers suggestions for a legal framework in which individual and groups of states may formulate effective responses to this threat to global security in light of the ongoing difficulties in adopting effective measures against Iran at the United Nations Security Council.
The article highlights the sometimes complex legal relationship between the United Nations system of collective security – through which a number of Security Council Resolutions against Iran have been grudgingly adopted – and the rights of states to take complementary countermeasures under general international law. The article argues that while properly interpreted the Security Council’s current sanctions resolutions against Iran do not grant discretion to states to broaden the scope of the Council’s measures, states retain their rights under general international law to take countermeasures collectively or unilaterally in response to wrongful acts, such as Iran’s violations of its NPT and IAEA obligations.
The article goes on to observe that while in an ideal world the United States would wish to address the Iranian nuclear issue through multilateral institutions like the United Nations, the geopolitical divergences among the Security Council’s Permanent Members may make it necessary for the United States and its European allies to consider unilateral or collective countermeasures admissible under international law. The article demonstrates that there is a substantial body of state practice supporting the right of states to take collective countermeasures in response to violations of multilateral obligations like the NPT, and that the case for this entitlement is at its strongest where, as in the situation with Iran, the wrongful conduct has been determined by an international body (the IAEA) with responsibility for monitoring and verifying compliance with the obligations in question. Indeed, in such instances, the use of countermeasures in response to violations – far from undermining the international legal order – may serve to promote respect for the international rule of law.
The Obama Administration confronts many of the same practical and legal complexities that interagency experts debated in the fall of 2001. Military commissions remain a valid, if unwieldy, tool to be used at the discretion of a Commander-in-Chief. Refinement of the commission procedures has consumed thousands of legal hours within the Department of Defense, as well as a significant share of the Supreme Court docket. In practice, the military commissions have not been the charade of justice created by an overpowerful and unaccountable chief executive that critics predicted. In light of the permissive structure of U.S. statutes and the framework of international precedent, there is no requirement for complete consistency between the procedures applicable to military commissions and Article III courts. The synergistic efforts of the judicial, legislative, and executive branches makes the current military commissions lawful and without question “established by law” as required by international norms.
This paper draws out the analogies and connections between long-standing legal sociological insights into pluralistic legal orders and present concerns with the fragmentation of law outside of the nation-state. Within the nation state, the discovery of legal pluralism inspired a larger contestation of concepts of legal formalism, the alleged unity of the legal order and the hierarchy of norms against the background of a consistently advancing process of constitutionalization. This research heightened regulators’ sensitivity for blind spots and exclusionary dynamics in the design of rights, leading inter alia to wide-ranging efforts to render more effective access to justice, legal aid and legal representation. Another important consequence concerned an increased awareness of different levels and sites of norm-creation in various societal areas. Much of this is mirrored by today’s quest for a just, democratic and equitable global legal order, for example in the debate about ‘fragmentation of international law’ or ‘global administrative law’. But, while the legal pluralism debate largely unfolded in the context (and contestation) of relatively mature legal orders and institutions, such institutional frameworks and safeguards are largely absent on the international plane. As a result, the emergence of numerous norm-setting agencies, specialized courts and tribunals and regulatory networks are perceived as obstacles or impediments to the creation of a sound legal order on a global scale, rather than as inherent traits of an evolving legal order.
In order to grasp the increasingly transterritorial nature of regulatory governance it is necessary to revisit the arguments in support of legal pluralism and, in particular, the legal pluralist critique of the association of law with the state. On that basis, it becomes possible to read the currently dominant narrative of the ‘end of law’ in an era of globalization in a different light. Rather than describing the advent of globalization as an end-point of legal development, a transnational perspective seeks to deconstruct the various law-state associations by understanding the evolution of law in relation and response to the development of ‘world society’. The currently lamented lack of democratic accountability, say, in international economic governance, can then be perceived as a further development in a highly differentiated and de-territorialized society. The paper thus rejects the attempts by lawyers to re-align transnational governance actors with traditional concepts of the state or of civil society and, instead, contrasts them with various advances in sociology and anthropology with regard to the evolution of ‘social norms’ and ‘spaces’ of governance and regulation. These perspectives effectively challenge present attempts to conceptualize a hierarchically structure global legal order. The here proposed concept of ‘transnational legal pluralism’ [TLP] goes beyond Philip Jessup’s 1956 idea of ‘transnational law’, through which he sought to complement and challenge Public and Private International Law. TLP brings together insights from legal sociology and legal theory with research on global justice, ethics and regulatory governance to illustrate the transnational nature of law and regulation, always pushing against the various claims to legal unity and hierarchy made over time.
Carrasco: The Global Financial Crisis and the Financial Stability Forum: The Awakening and Transformation of an International Body
This Article chronicles the awakening of the Financial Stability Forum (FSF) and its transformation into the Financial Stability Board (FSB). It describes the origins of the FSF and its relatively obscure work prior to the current crisis. It then chronicles the FSF’s significant rise in visibility throughout the crisis via its reports analyzing the crisis and setting forth recommendations relating to reforms of law and regulation of the financial markets. The FSF’s transformation into the FSB has given the FSF a more robust institutional grounding capable of coordinating its work with the IMF. The Article concludes that while the global financial crisis brought the FSF out of obscurity and resulted in its transformation into the FSB, it is still too early to tell whether the FSB will have a significant impact on global governance of international finance, especially with respect to the needs and interests of emerging economies.
The international community has agreed to abandon investment regulation in the Doha round, leaving itself with the indispensable goal of dealing with investment regulation on unilateral, bilateral and regional basis. The expansion of the already-extensive network of bilateral investment treaties ("BITs") that have been regulating foreign investment bilaterally in recent decades calls for a careful review of the network's characteristics and relationships with potential multilateral agreements in the future. This paper studies the multilateral element of the network through its reduced competitiveness factor, centralized signing mechanism, and harmonization of interpretation and implementation of the treaties by international tribunals.
The strong multilateral element of a BIT suggests that the BITs network could serve as a de facto multilateral agreement, as long as governments cannot agree on similar arrangements on the multilateral level. This phenomenon could make a future multilateral agreement redundant, strengthen the developing investor-state jurisprudence, and call for inclusion of non-investment related concessions in such bilateral treaties, such as the controversial corporate responsibilities provisions. Thus, the paper demonstrates how the important BITs network is gradually becoming a humanized multilateral agreement.
Barbara Koremenos (Univ. of Michigan - Political Science) will give a talk at the University of Georgia School of Law International Law Colloquium Series on "An Economic Analysis of International Rulemaking."
Thursday, January 28, 2010
- Pierre Lambert, La Cour européenne des droits de l’homme à l’épreuve de critiques . . . au fil du temps (En marge du cinquantième anniversaire de son installation),
- Florence Benoît-Rohmer, Bienvenue aux enfants de Bosphorus : la Cour européenne des droits de l'homme et les organisations internationales
- Régis Bismuth, Le développement de standards professionnels pour les journalistes dans la jurisprudence de la Cour européenne des droits de l’homme
- Katarzyna Grabarczyk, La Haute autorité de lutte contre les discriminations et pour l’égalité, un magistère d’influence ?
- Laurent Lombart, Le tyrannicide en droit international
- Bernadette Renauld, La décision-cadre 2008/913/JAI du Conseil de l'Union européenne : du nouveau en matière de lutte contre le racisme ?
- Daniel de Beer, Paul De Hert, Gloria González Fuster, & Serge Gutwirth, Nouveaux éclairages de la notion de « donnée personnelle » et application audacieuse du critère de proportionnalité
- Aurélien Vandeburie, L’égalité des armes entre candidats aux élections, sésame d’un droit d’accès des (petits) partis politiques aux médias audiovisuels en période électorale
- Jean-Paul JeanLa liberté des juges de critiquer publiquement le fonctionnement du système judiciaire
Le concept de crime contre l'humanité est à la fois simple - il renvoie à des actions qui révoltent la conscience - et complexe - sa signification est empreinte d’inconstance. De nombreux travaux scientifiques témoignent de cette ambivalence, au travers de l’étude de la notion de crime contre l’humanité et de son régime juridique. Des travaux dont l’apport majeur est de répondre au "comment". Sévane Garibian propose quant à elle de répondre au "pourquoi", et de reconstruire l’histoire du concept à partir des sources primaires et de l’abondante doctrine préexistante en adoptant un nouvel angle de vue. Cette approche inédite exige de rendre visibles les facteurs juridiques commandant l’évolution du concept. Pour ce faire, l’auteure s'appuie aussi sur les écrits dédiés plus généralement aux questions classiques et incontournables soulevées par l’internationalisation du droit pénal et l’émergence d’un ordre pénal international, indissociable de celle du concept, et d’une actualité sans cesse renouvelée.
- J.R. Spencer & Marie-Aimée Brajeux, Criminal Liability for Negligence—A Lesson from Across the Channel?
- Trevor C. Hartley, ‘Libel Tourism’ and Conflict of Laws
- Firat Cengiz, Antitrust Damages Actions: Lessons from American Indirect Purchasers' Litigation
- T.T. Arvind, The ‘Transplant Effect’ in Harmonization
- Gisele Kapterian, A Critique of the WTO Jurisprudence on ‘Necessity’
- Christian Henderson & James A. Green, The Jus Ad Bellum and Entities Short of Statehood in the Report on the Conflict in Georgia
- Douglas Guilfoyle, Counter-Piracy Law Enforcement and Human Rights
- Peter G. Danchin & Horst Fischer, Introduction: the new collective security
- Peter G. Danchin, Things fall apart: the concept of collective security in international law
- Jan Klabbers, Reflections on the politics of institutional reform
- Lauri Mälksoo, Great powers then and now: security council reform and responses to threats to peace and security
- Maxwell O. Chibundu, Assessing the high-level panel report: rethinking the causes and consequences of threats to collective security
- George Andreopoulos, Collective security and the responsibility to protect
- Joachim Wolf, Responses to non-military threats: environment, disease and technology
- Dirk Salomons, On the far side of conflict: the UN Peacebuilding Commission as optical illusion
- Ejeviome Oloho Otobo, The new peacebuilding architecture: an institutional innovation of the United Nations
- Jeremy Farrall, The world summit process and UN sanctions reform: between rhetoric and force
- Eric Rosand, The UN response to the evolving threat of global terrorism: institutional reform, rivalry, or renewal?
- Carmen Márquez Carrasco, International justice and collective security: between pragmatism and principle
- Dennis Dijkzeul, Developing security in the eastern DRC: MONUC as a practical example of (failing) collective security
- Elizabeth Salmón, Indirect power: a critical look at civil society in the new human rights council
- J. Paul Martin & Benedicto Q. Sánchez, Collective security: a village eye-view
- Justifications for and History of the Mandatory View
- Andreas Paulus, In Defense of Customary International Law
- Amanda Perreau-Saussine, Changing the Rules
- Anthea Roberts, Reflections on Bradley & Gulati’s Paper
- Edward Swaine, Comment on Bradley and Gulati
- How Customary International Law Develops and Evolves
- David Bederman, Acquiescence, Objection and the Death of Customary International Law
- Rachel Brewster, Withdrawing from Custom Through Treaty
- Samuel Estreicher, Comments on Bradley & Gulati
- Christiana Ochoa, The Rule of Law, and the CIL Formation, Modification and Disintegration Process
- Considerations of Efficiency and Design
- Eugene Kontorovich, Inefficient Customs in International Law
- Vincy Fon & Francesco Parisi, Stability and Change in International Customary Law
- Larry Helfer, Comments on Bradley & Gulati
- Joel Trachtman, Notes on How Persistent Objectors Play Chicken with Public Goods
- Domestic Application of Customary International Law
- Anthony Bellia & Bradford Clark, The Political Branches and the Law of Nations
- John McGinnis, Domestic and Asymmetrical Withdrawal Rights from Custom
- Paul Stephan, Disaggregating Customary International Law
Wednesday, January 27, 2010
Over the course of the last several years, the number of cases around the world raising the problem of climate change has increased dramatically, as has their mainstream acceptance. The impact of this litigation has arguably been greatest in the United States. Most notably, the U.S. Supreme Court’s decision in Massachusetts v. EPA – together with a cultural shift symbolized by Al Gore and the Intergovernmental Panel on Climate Change (IPCC) winning the Nobel Peace Prize – transformed the policy and litigation landscape. The election of President Obama changed things further, with his commitment to active U.S. participation in international climate treaty negotiations and to a robust federal regulatory approach to greenhouse gas emissions. The continuing relevance of climate change litigation in the United States was reinforced in fall 2009, as two circuit courts allowed public nuisance suits to move forward against major corporate emitters and implementation of Massachusetts v. EPA bolstered the U.S. negotiating position in Copenhagen against a backdrop of continued uncertainty surrounding climate change legislation.
Although U.S. courts and administrative tribunals remain major loci for these cases, they are not alone. Numerous cases have been filed in local, state, national, and international tribunals around the world based on a wide range of legal theories. What these cases share in common is their application of law to the problem of climate change, and their engagement of the complex public-private regulatory dynamics at the core of transnational climate change regulation. As individuals, corporations, nongovernmental organizations, and governments serve as plaintiffs and defendants in these cases, courts have become a critical forum in which the future of greenhouse gas emissions regulation and responsibility are debated.
This Essay considers the evolving importance of climate change litigation as part of transnational efforts to address this problem. Part II of the Essay examines the impacts of this litigation thus far, and maps its ongoing role. It focuses in particular on the litigation’s effect on governmental regulatory decisionmaking, corporate behavior, and public understanding of the problem. Part III of this Essay builds upon this examination by exploring the way in climate litigation influences particular actors at different levels of government over time. It argues that climate change litigation provides a valuable complement to treaty, legislative, and executive action because it fosters needed interaction across levels of government and different time periods. Part IV delves deeper into these scalar dynamics through a diagonal federalism approach, which focuses on the disputes’ simultaneous vertical and horizontal elements. It applies a taxonomy of diagonal regulation to two examples of climate change litigation stemming from the U.S. Clean Air Act, and considers the implications of that analysis for understanding the cases’ regulatory role. The Essay concludes by reiterating that the cross-cutting nature of climate change makes this litigation continue to be an important mechanism for spurring and fine-tuning governmental and corporate efforts.
The “Great Recession” has given way to a dizzying array of international agreements aimed at strengthening the prudential oversight and supervision of market participants. How these international financial rules operate is, however, deeply misunderstood. Theorists of international law view international financial rules as merely coordinating mechanisms in light of their informal “soft law” quality. Yet these scholars ignore the often steep distributional implications of financial rules that may favor some countries over others and thus fail to explain why soft law would be employed where losers to agreements can strategically defect from their commitments. Meanwhile, political scientists, though aware of the distributional dynamics of financial rule-making, rarely, if ever, examine international law as a category distinct from international politics. Law is instead cast as an inert, dependent variable of power, as opposed to an independent factor that can inform the behavior of regulators and market participants.This Article presents an alternative theory for understanding the purpose, operation and limitations of international financial law. It posits that international financial regulation, though formally “soft,” is a unique species of cross-border cooperation bolstered by reputational, market and institutional mechanisms that have been largely overlooked by theorists. As a result, it is more coercive than classical theories of international law predict. The Article notes, however, that these disciplinary mechanisms are hampered by a range of structural flaws that erode the “compliance pull” of global financial standards. In response to these shortcomings, the Article proposes a modest blueprint for regulatory reform that eschews more drastic (and impractical) calls for a global financial regulator and instead aims to leverage transparency in ways that more effectively force national authorities to internalize the costs of their regulatory decision-making.
Omar Nashabe (Lebanese American Univ.) will give a talk today at the LSE Centre for the Study of Global Governance on "The Special Tribunal for Lebanon: Where Could Justice Go Wrong?"
Richard Stewart (New York Univ. - Law) will give a talk today at the New York University School of Law Institute for International Law and Justice International Legal Theory Colloquium on "The World Trade Organization: Multiple Dimensions of Global Administrative Law."
Tuesday, January 26, 2010
Ein umfassender und effektiver Schutz der Menschenrechte kann nur durch eine sachgerechte Interpretation der Menschenrechtsverträge gewährleistet werden. Die Wissenschaft und die internationale Gerichtsbarkeit haben hierfür spezifische Auslegungsmethoden entwickelt.
Die Autorin untersucht die Interpretationskriterien, die zwei internationale Gerichtshöfe in ihrer Rechtsprechung verwenden. Sie analysiert die Auslegungsmethodik des EGMR und des Interamerikanischen Gerichtshofs für Menschenrechte. Die Studie richtet sich insbesondere an Völkerrechtler.
On World Food Day in October 2008, former president Bill Clinton finally accepted decade-old criticism directed at his administration's pursuit of free-trade deals with little regard for food safety, child labor, or workers' rights. "We all blew it, including me when I was president. We blew it. We were wrong to believe that food was like some other product in international trade." Clinton's public admission came at a time when consumers in the United States were hearing unsettling stories about contaminated food, toys, and medical products from China, and the first real calls were being made for more regulation of imported products. Import Safety comes at a moment when public interest is engaged with the subject and the government is receptive to the idea of consumer protections that were not instituted when many of the Clinton era's free-trade pacts were drafted.
Written by leading scholars and analysts, the chapters in Import Safety provide background and policy guidance on improving consumer safety in imported food, pharmaceuticals, medical devices, and toys and other products aimed at children. Together, they consider whether policymakers should approach import safety issues through better funding of traditional interventions—such as regulatory oversight and product liability—or whether this problem poses a different kind of governance challenge, requiring wholly new methods.
This volume examines the complex relationship between economic and non-economic objectives in WTO law. It discusses how non-economic objectives (such as the protection of public morals, life and health, environment, or human rights) can serve as justification for trade-restrictive measures normally prohibited under WTO law. The relevant non-economic grounds of justification are analysed, as well as the substantive and procedural requirements which restrain the use of trade-restrictive measures taken for non-economic purposes. The issues covered by this book also have wider systemic implications for the WTO. Only if the WTO can demonstrate that it is not just concerned about free trade, but respects non-economic objectives as well, is it likely to remain a sustainable and legitimate form of governance.
- Special Issue: International Humanitarian Law - Celebrating the 60th Anniversary of the Geneva Conventions
- Rikke Ishøy, Introduction
- Jean-Marie Henckaerts, Customary International Humanitarian Law: Taking Stock of the ICRC Study
- Frederik Harhoff, It Is all in the Process: Reflections on the Relation between International Criminal Trials and International Humanitarian Law
- Rikke Ishøy, It Should Never Be Questioned
- Thomas Winkler, The Copenhagen Process on Detainees: A Necessity
- Marja Lehto, War on Terror — Armed Conflict with Al-Qaida?
- Ola Engdahl, Compliance with International Humanitarian Law in Multinational Peace Operations
- Cecilia Hellman & Kristina Lindvall, From Cold War to Hotspots — The Changing Needs for Dissemination of International Humanitarian Law in Sweden
- Pål Wrange, The EU Guidelines on Promoting Compliance with International Humanitarian Law
- Inger Österdahl, Dangerous Liaison? The Disappearing Dichotomy between Jus ad Bellum and in Bello
- Tørris Jæger, Humanitarian and Military Action in Armed Conflict — Side by Side, not Hand in Hand
- Thordis Ingadottir, The ICJ Armed Activity Case — Reflections on States' Obligation to Investigate and Prosecute Individuals for Serious Human Rights Violations and Grave Breaches of the Geneva Conventions
Monday, January 25, 2010
The principle of complementarity lies at the heart of the Rome Statute of the International Criminal Court. Yet the principle, and the provisions on admissibility which implement it, were the subject of relatively little judicial consideration in the early years of the Court's operation. Recently, this has changed: between September 2008 and September 2009, three appeal judgments on admissibility were either delivered or unsealed. This chapter charts the evolution of the Court's jurisprudence on admissibility: from the first applications for a warrant of arrest in 2005 through to the first challenge to admissibility in 2009 and resulting appeal judgment. It analyses the elements that have been settled regarding the legal test for admissibility; the factual basis on which this determination will be made; and the procedure for challenging or reviewing admissibility. The chapter concludes by considering what the jurisprudence tells us about the purpose, or purposes, of each aspect of the test for admissibility enshrined in Article 17 of the Rome Statute.
This essay considers the requirement of state action in suits brought against private corporations under the Alien Tort Statute. It argues that, in addressing this requirement, courts have erred in applying the state action jurisprudence developed under the domestic civil rights statute, 42 U.S.C. § 1983. It also argues that, even if it were appropriate to borrow in this manner from the Section 1983 cases, such borrowing would not support the allowance of aiding and abetting liability against corporations, and that this liability is also problematic on a number of other grounds.
- Fausto Pocar, International Criminal Tribunals and Serious Violations of International Humanitarian Law against Civilians and Prisoner of War
- Bertrand G. Ramcharan, The Protection Concept of the UN Human Rights Council
- Jiří Malenovský, L'ambiguïté du rôle des juges «nationaux» et des juges ad hoc au sein des juridictions internationales
- Almiro Rodrigues, War Crimes and Human Rights in action
- Hans Kochler, Global Justice or Global Revenge? The ICC and the Politicization of International Criminal Justice
- S.R.S. Bedi, The Development of India’s Nuclear Weapons Policy in the Framework of the Development of the International Humanitarian Law by the International Court of Justice
- Noelle Quenivet, Rethinking the Application of the Principle of Distinction
- Mohammed Saif-Alden Wattad, Fighting Terrorism with Restrained Hands Challenging the Israeli Case against Torture
- Katerina Novotna, Relationship between Crimes under International Law and Immunities: Coexistence or Exclusion? Charles Taylor Case
- Dominika Švarc, Protection of Civilians in Peace Operations: The Evolving Normative Framework and the Operationalization of ‘Protection’ Norms
- Kevin Govern, Are International Humanitarian Law’s Cornerstone Documents Still Secure Sixty Years on? Some thoughts on the Geneva Conventions and Protocols Additional
- Zakia Afrin, Domestic violence and the Need for an International Legal Response
- Manoj Kumar Sinha, History and Evaluation of International Criminal Law
This book examines UN naval peace operations, addressing the construction and assessment of authority with respect to a range of acts essential to the conduct of such operations. The focus is particularly upon operations as they relate to and impact upon the Territorial Sea. Within a conceptual approach emphasising the interaction of power and legitimation in the construction of authority, naval peace operations issues such as Innocent Passage, interdiction operations, and transitional administration are considered. The book concludes by proposing a conceptually and operationally sensitive approach to constructing authority for the conduct of UN naval peace operations in the Territorial Sea.
- Matthew C. Waxman, The Use of Force Against States That Might Have Weapons of Mass Destruction
- Jean Galbraith, The Pace of International Criminal Justice
- Mykola Sorochinsky, Prosecuting Torturers, Protecting "Child Molesters": Toward a Power Balance Model of Criminal Process for International Human Rights Law
- Annecoos Wiersema, The New International Law-Makers? Conferences of the Parties to Multilateral Environmental Agreements
Sunday, January 24, 2010
- Yves Daudet, Aspects de la question des sources du droit international
- Armin von Bogdandy & Sergio Dellavalle, The Paradigms of Universalism and Particularism in the Age of Globalisation: Western Perspectives on the Premises and Finality of International Law
- Jose Angelo Estrella Faria, Legal Aspects of Electronic Commerce: Rules of Evidence, Contract Formation and Online Performance
- Tibor Várady, The Elusive Pro-Arbitration Priority in Contemporary Court Scrutiny of Arbitral Awards