States and entrepreneurs are becoming increasingly interested in the economic potential of ocean areas beyond the national jurisdiction of coastal States, namely the high seas and the Area. This has led to growing support within the international community to enhance the international legal regime for those areas, among other things to protect and preserve the environment and biodiversity. However, the current debate in international fora indicates that States have widely different interpretations on key aspects of this regime. For instance, what implications do the principles contained in the United Nations Convention on the Law of the Sea have for the governance and regulation of these areas, how is access to natural resources best regulated, how are benefits derived from these areas to be distributed and which specific institutional frameworks should be employed in the management of areas beyond national jurisdiction?
This work intends to contribute to a better understanding of the international law aspects of the ongoing debate on current and future international governance and regulation of areas beyond national jurisdiction. To this end four specific topics are examined: principles and objectives of the legal regime; institutional arrangements for the legal regime; entitlements to marine living resources; and compliance with international regulations.
Saturday, March 20, 2010
Molenaar & Oude Elferink: The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments
Friday, March 19, 2010
The New Zealand Yearbook of International Law is an annual, international refereed publication. The Editorial Board calls for both short notes and commentaries, and longer in-depth articles, for publication in the 2009 edition of the Yearbook. Notes and commentaries should be between 1,500 to 3,000 words. Articles may be from 6,000 to 20,000 words.The Editorial Board seeks contributions on current topics in international law. The Board is particularly interested in receiving submissions that are relevant to New Zealand, the Pacific, the Southern Ocean and Antarctica.The closing date for submissions is 1 June 2010. Submissions should be provided in English, using MSWord-compatible word processing software, and delivered by email to the General Editor at firstname.lastname@example.org.
Contributions must be original unpublished works and submission of contributions will be held to imply this.
Manuscripts must be word-processed and in compliance with the New Zealand Law Style Guide.
S’inscrivant dans la vaste enquête sur la justice internationale entreprise au cours des dernières décennies par de nombreux chercheurs et intellectuels, cet ouvrage propose une analyse détaillée d’un des arguments les plus influents invoqués pour justifier une répartition mondiale de la richesse, à savoir le partage équitable des ressources naturelles de la planète. Les profits gigantesques que certains pays tirent de l’exploitation de ressources comme le pétrole et les pierres précieuses, l’importance stratégique grandissante de certaines autres ressources, notamment de l’eau, et les difficultés qu’éprouvent certains pays, apparemment pauvres en ressources, à sortir de leur condition misérable, contribuent grandement à rendre plus crédible l’argumentation de ceux qui prônent un meilleur partage des ressources. L’objectif de cet ouvrage est de clarifier cet argument, d’examiner ses variantes, d’en évaluer la portée.
Kammerhofer: Constitutionalism and the Myth of Practical Reason. Kelsenian Responses to Methodological Confusion
While today a significant stream of European scholarship of international law is concerned with the process and consequences of its constitutionalisation, criticism of this trend has so far been muted. This article, using elements of the Pure Theory of Law, argues that constitutionalist writings confound their methodologies; that scholarship arrogates to itself competencies which it does not have and that this confusion nullifies the benefits of the constitutionalist project for international law. The key mistake is called a methodological circle: scholars call something a constitution and in effect claim that the law is changed by this classification. Thus constitutionalism relies on the natural law concept of practical reason; constitutionalism is, in turn, vulnerable to Kelsen’s arguments against practical reason. Constitutionalism, like practical reason before it, contains an impossible admixture of the human faculties of will and cognition. The general critique is followed by a look at Article 2(6) UN Charter as a case in point. Here constitutionalism shows how law is purportedly changed by taxonomy. The article concludes by taking a look at an alternative vision of the constitution of international law: the re-discovery of a strictly legal, i.e. structural, constitution as highest echelon of legal regulation.
The dramatic rise in the number of international courts and tribunals and the expansion of their legal powers has been one of the most significant developments in international law of the late 20th century. The emergence of an international judiciary provided international law with a stronger than ever law enforcement apparatus, and facilitated the transformation of many aspects of international relations from being power-based to being law-based.
The first edition of the Manual on International Courts and Tribunals, published in 1999, was the first book to survey systematically this new institutional landscape, by describing in an accessible and uniformly structured manner the legal powers and operating procedures of all major international judicial and quasi-judicial bodies. In doing so, it laid the groundwork for comparative study and research of the law and practice of international courts and tribunals - an emerging field of international legal research, which has already spurred a series of publications, conferences and academic courses.
This second edition updates the first edition by describing the many legal changes that have taken place in the last decade, including important reforms in the laws and procedures of many international courts and tribunals, relevant developments in their increasingly rich jurisprudence and the creation of new judicial fora. Moreover, it assesses the overall record of these judicial bodies. The data and legal analysis offered in the book provide both practitioners and academics with an important basis of knowledge that will help them better understand the details of international adjudication and its context.
Thursday, March 18, 2010
- Symposium: A Special Tribute to Andreas Lowenfeld
- Linda J. Silberman, Introduction: A Personal Note
- Thomas M. Franck, Raising the Hoe: The New Clientage: Andy and Me at Vanderbilt Hall
- José E. Alvarez, A BIT on Custom
- Mario Giovanoli, The Reform of International Financial Architecture After the Global Crisis
- Lawrence Collins, Professor Lowenfeld and the Enforcement of Foreign Public Law
- Eleanor M. Fox, Modernization of Effects Jurisdiction: From Hands-Off to Hands-Linked
- George A. Bermann, Restating the U.S. Law of International Commercial Arbitration
- Graeme B. Dinwoodie, Rochelle C. Dreyfuss & Annette Kur, The Law Applicable to Secondary Liability in Intellectual Property Cases
- Peter D. Trooboff, Proposed Principles for United States Implementation of the New Hague Convention on Choice of Court Agreements
Starting this year, the Tilburg Law Review will announce a Student Essay Competition for each issue. This competition will offer students interested in international and/or European law an opportunity to submit an article on a predetermined topic. The Editorial Board will evaluate the submissions, and the winning piece will be published in the Journal.
Student essays should not exceed 5000 words in length (excluding footnotes), and they should be the student’s original work (co-authorship is permissible only with other students). Students must be enrolled in undergraduate or graduate law programs at the time of submission in order to be eligible. PhD and JSD students are not eligible for this Student Essay Competition, as they are eligible to submit articles for general consideration. All of the other guidelines apply (see “Guidelines” section).
Submissions to the Summer 2010 TLR Student Essay Competition are due by April 30th. The topic of the Student Essay Competition for the Summer 2010 issue is:
“The EU and International Law after the Lisbon Treaty: Challenges and Opportunities”
This paper looks at the concept of legal personality from the Pure Theory of Law's theoretical vantage point. This theory will be applied to the debate on non-state actors in international law. In the following, we will proceed in three steps: first, we will present how the Pure Theory constructs legal personality on a purely legal-normativistic basis; second, the general jurisprudential construct will be applied to international law; third, we will re-state the Pure Theory’s case with respect to non-state actors. Kelsen’s construction of the concept of legal personality, particular in international law and the attendant removal of non-legal or pre-legal elements that adhere to many doctrines - such as the traditional notion of sovereignty as absolute pre-legal power of the state - and their reduction to the legal core (sovereignty as a function granted to states by international law) has the salutary effect to show the positive law in force and unmask myths that needlessly complicate international legal doctrine.
This Article seeks to explain when an international legal framework like the WTO can facilitate international cooperation and when it fails to do so. Using an empirical inquiry into different agreements that the WTO has attempted to facilitate – specifically intellectual property and antitrust regulation – it reveals more general principles about when and why the WTO can facilitate agreement in some situations and not others. Comparing the successful conclusion of the TRIPs Agreement and the failed attempts to negotiate a WTO antitrust agreement reveal that international cooperation is likely to emerge when the interests of powerful states are closely aligned and when concentrated interest groups within those states actively support cooperation. They further suggest that the WTO provides an optimal forum for cooperation when states need to rely on cross-issue linkages to overcome existing distributional conflicts, when the underlying issue calls for an enforcement mechanism, or when both the net benefits of the agreement and the opportunity costs of non-agreement are high. Contrasting the key differences between IP and antitrust cooperation, this Article disputes the widely held view that the strategic situation underlying IP and antitrust cooperation are similar and that the conclusion of the TRIPs Agreement is a relevant precedent predicting a successful WTO negotiation on antitrust or a host of other new regulatory issues. Given the ongoing changes in the economic and political landscape, cooperation in the WTO is even more challenging today and it is possible that – absent institutional reforms – the WTO’s recent expansion may well have met its limits.
Wednesday, March 17, 2010
The Digest of United States Practice in International Law presents an annual compilation of documents and commentary highlighting significant developments in public and private international law, and is an invaluable resource for practitioners and scholars in the field.
Each year's volume compiles excerpts from documents such as treaties, diplomatic notes and correspondence, legal opinion letters, judicial decisions, Senate committee reports and press releases. Each document is selected by members of the Legal Adviser's Office of the U.S. Department of State, based on their judgments about the significance of the issues, their potential relevance to future situations, and their likely interest to scholars and practitioners. In almost every case, the commentary to each excerpt is accompanied by a citation to the full text.
- Bernhard Berger, Security for Costs: Trends and Developments in Swiss Arbitral Case Law
- Felix Dasser, International Arbitration and Setting Aside Proceedings in Switzerland – An Updated Statistical Analysis
- April 30, 2010: Aurora Mateos (formerly, Legal Adviser, Intergovernmental Oceanographic Commission, UNESCO), Climate Change at Copenhagen
- May 7, 2010: Joshua Brien (Legal Adviser, Special Advisory Services Division, Commonwealth Secretariat), The Determination of Outer Continental Shelf under Annex 2 of UNCLOS
- May 14, 2010: Daniel Taub (Principal Deputy Legal Adviser, Israel Ministry of Foreign Affairs), The Goldstone Report on the Gaza Conflict: A Response
Call for Submissions
Tilburg Law Review:
Journal of International and European Law
The Tilburg Law Review is the successor to the Tilburg Foreign Law Review, and invites you to submit original scholarly articles on subjects of international law, European law, or their various intersections with each other and with other issues of societal relevance. The TLR is a peerreviewed, graduate student-run publication of Tilburg University’s Faculty of Law.
Submissions are considered on a rolling basis, but if you wish to be considered for the Summer Issue - Volume 15(1), you should aim to submit your manuscript before May 15th. Articles should not exceed 10,000 words. Book Reviews are also accepted. Please see our website for submission guidelines.
Tuesday, March 16, 2010
- Vaughan Lowe, Private Disputes and the Public Interest in International Law
- Malgosia Fitzmaurice, The International Court of Justice and Environmental Disputes
- Duncan French & Richard Kirkham, Complaint and Grievance Mechanisms in International Dispute Settlement
- Sorcha MacLeod, Stuck in the Middle With You?: Alternative Approaches to Realising Accountability for Human Rights Violations by Business
- Sandy Ghandhi, Practice and Procedure of Dispute Settlement in Individual Communication Cases within the Human Rights Committee and the Committee on the Elimination of Discrimination against Women: Congruence or Conflict?
- Robin Churchill, Trends in Dispute Settlement in the Law of the Sea: Towards the Increasing Availability of Compulsory Means
- Surya P. Subedi, The WTO Dispute Settlement Mechanism as a New Technique for Settling Disputes in International Law
- Nigel D. White & Matthew Saul, Legal Means of Dispute Settlement in the Field of Collective Security: The Quasi-Judicial Powers of the Security Council
- Karen N. Scott, Non-compliance Procedures and Dispute Resolution Mechanisms under International Environmental Agreements
- James Crawford, The Antarctic Treaty after 50 Years
- Kisch Beevers, Cross-border Family Mediation
- Gino J. Naldi, Aspects of the African Court of Justice and Human Rights
- Tawhida Ahmed, The EU, the ECHR and the Effective Protection of Human Rights for Individuals
- Paul James Cardwell, The European Court of Justice as a Constitutional Court: Implications for the EU and International Legal Orders
The last sixty years witnessed an unprecedented expansion of international trade. The system created by the General Agreement on Tariffs and Trade and later by the World Trade Organization (WTO) has proved to be an efficient instrument for the elimination of trade and tariff barriers. This process coincided with increased national regulatory controls, which were particularly visible in the area of risk regulation. Governments, responding to the demands of their domestic constituencies, have adopted a wide range of regulatory measures aimed at protecting the environment and human health. Although, for the most part, the new regulatory initiatives served legitimate objectives, it has also turned out that internal measures might become an attractive vehicle for protectionism, taking the place that was traditionally occupied by tariff barriers. The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) is an attempt by the international community to limit possible abuses while assuring WTO Members of an extensive margin of regulatory discretion.
The central problem that the book tackles is whether the system established by the SPS Agreement can address the existing and potential challenges of a new interdependent world. In answering this question, the author provides a comprehensive and critical examination of the substantive provisions of the Agreement and corresponding case law. In this context, the book particularly focuses on two issues: the consistency in the interpretation of the SPS Agreement and the appropriateness of its various requirements. This analysis leads the author to conclude that despite some interpretative failures of SPS case law, the system established by the SPS Agreement seems to provide an effective solution for the supervision of domestic SPS measures.
This book provides the first comprehensive account of the role played by the European Convention on Human Rights during the conflict in Northern Ireland from 1968. Brice Dickson studies the effectiveness of the Convention in protecting human rights in a society wracked by terrorism and deep political conflict, detailing the numerous applications lodged at Strasbourg relating to the conflict and considering how they were dealt with by the enforcement bodies. The book illustrates the limitations inherent in the Convention system but also demonstrates how the European Commission and Court of Human Rights gradually developed a more interventionist approach to the applications emanating from Northern Ireland. In turn this allowed the Convention to become a more secure guarantor of basic rights and freedoms during times of extreme civil unrest and political turmoil elsewhere in Europe.
The topics examined include the right to life, the right not to be ill-treated, the right to liberty, the right to a fair trial, the right to a private life, the right to freedom of belief, the right to freedom of expression, the right to freedom of assembly, and the right not to be discriminated against. The book argues that, while eventually the European Court did use the applications from Northern Ireland to establish important human rights principles, their development was slow and arduous and some gaps in protection still remain. The book illustrates the limits of the European Convention as a tool for protecting human rights in times of crisis.
- Maureen English, Objectivity and Statutory Interpretation: End Use in the Canadian Customs Tariff
- Pierre François Mercure, La notion de conditionnalité reconsidérée dans les relations Nord-Sud: réflexion sur une approche favorisant le plein exercice des droits économiques dans les pays en développement
- Kristen E. Boon, The Future of the Law of Occupation
- Frédéric Mégret, Civil Disobedience and International Law: Sketch for a Theoretical Argument
- Verónica B. Pinero, Canadian International Human Rights Obligations in the Context of Assisted Human Reproduction
- Karinne Coombes, Protecting Civilians during the Fight against Transnational Terrorism: Applying International Humanitarian Law to Transnational Armed Conflicts
- Notes and Comments
- John H. Currie, Khadr’s Twist on Hape: Tortured Determinations of the Extraterritorial Reach of the Canadian Charter
- Charles-Emmanuel Côté, Un nouveau chantier transatlantique: l’entente France-Québec sur la reconnaissance des qualifications professionnelles
- Jean-Gabriel Castel, Giving Effect to Out-of-Province Judgments in Class Actions
- C. Emanuelli, Faut-il parler d’une "guerre" contre le terrorisme?
- Nils Petter Gleditsch & Ragnhild Nordås, Climate Change and Conflict: A Critical Overview
- Helmut Breitmeier, Klimawandel und Gewaltkonfl ikte: Das unsichere Wissen über den Kausalzusammenhang und die Notwendigkeit von Maßnahmen zur Anpassung und Gewaltprävention
- Volker Röben, Der völkerrechtliche Rahmen für die Sezession einer Minderheit aus dem Staatsverband: Kosovo als Präzedenzfall?
- Conrad Schetter & Katja Mielke, Staatlichkeit und Intervention in Afghanistan
Monday, March 15, 2010
The international legal order, although pluralist in structure, is in the process of being constitutionalized. This article supports this claim in several different ways. In the Part I, I argue that most accepted understandings of “constitution” would readily apply to at least some international regimes. In Part II, I discuss different notions of “constitutional pluralism,” and demonstrate that legal pluralism is not necessarily antithetical to constitutionalism. In fact, one finds a great deal of constitutional pluralism within national legal orders in Europe. Part III puts forward an argument that the European Court of Justice, the European Court of Human Rights, and the Appellate Body of the World Trade Organization are constitutional jurisdictions. In the Conclusion, I respond what I take to be the most important objections to these claims.
- X. Dijon, Les masques du droit en Afrique: Une lecture européenne des sources de la norme
- F. Quilleré-Majzoub, Le droit international des réfugiés et les changements climatiques: vers une acceptation de l'"ecoprofugus"?
- Christopher R. Drahοzal, The Future of Manifest Disregard
- Elie Kleiman, The SNF v. International Chamber of Commerce Case and the Obligation to Conduct Arbitration Proceedings with "Expected Dispatch"
- Peter Megens & Beth Cubitt, Arbitrators' Perspective: The Evolving Face of International Arbitration—The Past, The Present and The Future
- Marcia A. Wiss & Charles B. Rosenberg, Avoiding Waiving a Right to ICSID Arbitration in the Negotiation of a Concession Agreement
- Theresa Isele, The Principle Tura Novit Curia in International Commercial Arbitration
- Lord Steyn, The Legality of the Invasion of Iraq
- Jim Murdoch, Unfulfilled Expectations: the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women
- A. Van Pachtenbeke & Y. Haeck, From De Becker to Varnava: the State of Continuing Situations in the Strasbourg Case Law
- Helen Wildbore, The Equality and Human Rights Commission's Human Rights Inquiry: an Opportunity for Change
- Catherine Harby, The Changing Nature of Interim Measures before the European Court of Human Rights
The International Criminal Court has been operational since mid-2003, following the entry into force of the Rome Statute of the International Criminal Court on 1 July 2002. The Rome Statute is among the most complex international treaties, a combination of public international law, international humanitarian law and criminal law, both international and domestic. The Commentary provides an article-by-article analysis of the Statute. Each of the 128 articles is presented accompanied by a bibliography of academic literature relevant to that provision, an overview of the drafting history of the provision and an analysis of the text. The analytical portion of each chapter draws upon relevant case law from the Court itself, as well as from other international and national criminal tribunals, academic commentary, and the related instruments such as the Elements of Crimes, the Rules of Procedure and Evidence and the Relationship Agreement with the United Nations. Written by a single author, the Commentary avoids duplication and inconsistency, providing a comprehensive presentation to assist those who must understand, interpret and apply the complex provisions of the Rome Statute.
Sunday, March 14, 2010
- José E. Alvarez, Foreword
- Nigel D. White & Richard Collins, Introduction
- Richard Collins, Between Autonomy and Instrumentality: International Institutions in the History of International Law
- Patrick Capps, Legal Autonomy in Kant’s Philosophy of International Law
- Jan Klabbers, Constitutionalizing Virtue in International Institutional Law
- Bob Reinalda & Bertjan Verbeek, Theories of Autonomy: Perspectives from International Relations
- Garrett W. Brown, Theories of Autonomy: An Examination of Institutional Autonomy in Global Governance from a Cosmopolitan Perspective
- Catherine Brölmann, International Institutions and the Rule of Law
- Ramses A. Wessel, International Organisations as Autonomous International Law-Makers?
- John Merrills, International Adjudication and Autonomy
- Frédéric Dopagne, Institutional Enforcement of International Law
- Tarcisio Gazzini, The Relationship between International Legal Personality and Institutional Autonomy
- Ralph Wilde, Autonomy as a problem of accountability for international organisations?
- Eric De Brabandere, Privileges and immunities as institutional autonomy
- Viljam Engstrom, Implied powers as a manifestation of institutional autonomy?
- Jean d’Aspremont, Relativizing the Concept of Autonomy of International Organizations
- Nigel D. White, Autonomy in the UN Legal Order
- James Muiruri, Regional Organisations & the UN Legal Order: Interdependence or Independence? A Case Study on the African Union
- Nicholas Tsagourias, Autonomy of International Organisations: the European Union
- Paul Cardwell, Autonomy in terms of European Governance
- Duncan French, Autonomy in International Environmental Law & Governance - A Case Study of the Actual (somewhere between the fable and the threat)
- Mary Footer, Future Imperfect: Institutional Autonomy and the WTO
- Jan Wouters, The possibility of institutional autonomy in the context of international trade?
- Nico Krisch, Institutional Autonomy in the Context of Human Rights Law
- David Freestone, Idea of Institutional Autonomy in the context of the International Financial Institutions
- Nigel D. White & Richard Collins, Conclusion