This Article focuses on the relationship between the legal regimes governing offshore resources in the continental shelves and the deep seabed, particularly in reference to the extent to which continental shelf claims are encroaching on the deep seabed. The question of how well these respective legal regimes regulate resource exploitation will also be considered, along with an analysis of the underlying reasons driving change in these governance structures. I argue that the primary issue is one of whether vague rules, particularly UNCLOS Article 76, are working in terms of incentivizing sustainable, peaceful development of offshore resources.
Saturday, September 11, 2010
Friday, September 10, 2010
- Martti Koskenniemi, Foreword
- Fleur Johns, Richard Joyce & Sundhya Pahuja, Introduction
- Jennifer Beard, The International Law in Force: Anachronistic Ethics and Divine Violence
- Oscar Guardiola-Rivera, Absolute Contingency and the Prescriptive Force of International Law, Chiapas-Valladolid, ca. 1550
- Peter Fitzpatrick, Latin Roots: The Force of International Law as Event
- Richard Joyce, Westphalia: Event, Memory, Myth
- Thomas Skouteris, The Force of a Doctrine: Art. 38 of the PCIJ Statute and the Sources of International Law
- Gerry Simpson, Paris 1793 and 1871: Levée en Masse as Event
- Sundhya Pahuja, Decolonisation and the Eventness of International Law
- Scott Newton, Postwar to New World Order and Post-Socialist Transition: 1989 As Pseudo-Event
- Frédéric Mégret, The Liberation of Nelson Mandela: Anatomy of a "Happy Event" in International Law
- Emilios Christodoulidis, Political Trials as Events
- Karen Knop, The Tokyo Women’s Tribunal and the Turn to Fiction
- Denise Ferreira da Silva, Many Hundred Thousand Bodies Later: An Analysis of the ‘Legacy’ of the International Criminal Tribunal for Rwanda
- Patricia Tuitt, From the State to the Union: International Law and the Appropriation of the New Europe
- Fiona Macmillan, The Emergence of the World Trade Organization: Another Triumph of Corporate Capitalism?
- Donatella Alessandrini, The World Trade Organisation and Development: Victory of ‘Rational Choice’?
- Ruth Buchanan, Protesting the WTO in Seattle: Transnational Citizen Action, International Law and the Event
- Obiora Chinedu Okafor, Globalism, Memory and 9/11: A Critical Third World Perspective
- John Strawson, Provoking International Law: War and Regime Change in Iraq
- Fleur Johns, The Torture Memos
International Law and Power Politics: Great Powers, Peripheries and Claims to Spheres of Influence in International Normative Order
European Society of International Law Research Forum
27-28 May 2011, Tallinn, Estonia (organized by Tartu University)
International law as a field has a complex relationship with the reality of international politics. Usually, it is understood that international law is about legal rules and not about the sociological patterns one might observe in international relations. This view, often associated with legal positivism, juxtaposes the rule-based world of international law with the unpredictable world of international politics.The nemesis of such an approach is the realist theory of international relations. It takes a darker view of the role of international law in international relations considering it either irrelevant or as a rhetorical fig leaf for great power interests. The tradition of international law and the realist school of international relations seem to represent irreconcilable philosophical traditions about human nature and the nature of international relations.
The 4th ESIL Research Forum intends to cross the front line to confront the intellectual arch-enemy of the tradition of international law, realism. While proceeding from the tradition of international law, the main idea of the forum is to take the challenge presented by realism seriously. After all, how do concepts such as great powers, peripheries and spheres of influence relate to the reality of international law? To what extent does international law manage to restrain hegemonic powers? To what extent are great powers able to translate their interests into universal legal rules and principles? Do balance of power considerations play a role in the application of international law? Questions of this kind have often been raised by commentators, such as when crises occurred in Kosovo in 1999/2007, Iraq in 2003 and Georgia in 2008. While realism presents a historically predominant starting point for thinking about power politics, there also exist alternative views about the role of power in international normative order, for example the ones that emphasize economic control over direct use of military force.
ESIL’s Research Forum in Tallinn - a European Capital of Culture in 2011 - will address these issues both from historical-theoretical and contemporary-empirical perspectives. The keynote speakers include Mr Toomas Hendrik Ilves, President of Estonia, and Mr Anatoly Kovler, a judge from the Russian Federation elected to the European Court of Human Rights.
Abstracts are invited for participation in panel discussions on the following, fairly broad, topics:
1) International Law and the Concepts of Balance of Power and Spheres of Influence (Chair: Benedict Kingsbury)
2) International Law and Center-Periphery Dynamics (Chair: Thomas Skouteris)
3) International Law in Foreign Policy and Military Doctrines of the UN Security Council’s Permanent Members: A Critical Comparison (Chair: Bardo Fassbender)
4) The Fragmentation of International Law, Regionalism and ’Greater Spaces’ – a Challenge to Universality? (Chair: Martti Koskenniemi)
5) The Definition of Aggression and the Prohibition of the Use of Force: Who Determines the Aggressor, and How? (Chair: Mariano Aznar Gomez)
6) Russia’s Contemporary Understanding of International Law: Identical to Western Approaches? (Chair: Mark Entin)
7) The Role of International Lawyers in International Politics: the Life and Legacy of Friedrich (Fedor Fedorovich) Martens (1845-1909) (Chair: Bruno Simma)
8) International Law of Minority Rights: Regional, Universal or Double Standards? (Chair: Boldizsar Nagy)
9) International Institutions, Decision-making Processes and the Logic of the Distribution of Power (Chair: Laurence Boisson de Chazournes)
10) Kosovo and South Ossetia: Similar or Different? Consequences for International Law (Chair: Liliana Tymchenko)
11) Oil, Gas and Questions concerning the Legal Regime of the Arctic Ocean and the Baltic, Black and Caspian Seas (Chair: Alan Boyle)
12) The Role of the European Court of Human Rights in Transition from Totalitarianism: the European mission civilisatrice of our Time? (Chair: Ineta Ziemele)
13) Piracy as an Old/New Challenge to International Legal Order (Chair: Tullio Treves)
14) Cyber-Attacks and the Threshold to Use of Force in International Law: Rethinking Use of Force in International Relations (Chair: Michael Schmitt)
15) NATO, CSTO and the United Nations: The Uneasy Overlap of Regional and Universal Collective Security Organizations (Chair: Erika de Wet)
The abstracts, which may be written in English or French, should consist of no more than 150 words, be clear, concise and to the point, and be accompanied by a brief curriculum vitae and a list of publications. Please indicate for which panel the abstract is intended. Each panel will ultimately have 3-4 panelists. Abstracts should be submitted via the Research Forum website – www.esil2011.ut.ee – which will be online as of 1 September 2010. The deadline for the submission of abstracts is 15 December 2010.
Panelists will be selected in January 2011. Successful applicants are kindly asked to become a member of ESIL if they are not yet members. Individuals whose papers are selected will be exempted from paying the participation fee but will have to cover their own travel and accommodation costs. A limited number of scholarships will be available for speakers to help cover such costs; please indicate in your application whether you wish to request such a scholarship.
A selection of papers will be published in the 2012 issue of the Baltic Yearbook of International Law (Brill/Martinus Nijhoff).
- Tamar Gutner & Alexander Thompson, The politics of IO performance: A framework
- Michael Lipson, Performance under ambiguity: International organization performance in UN peacekeeping
- Mark A. Pollack & Emilie M. Hafner-Burton, Mainstreaming international governance: The environment, gender, and IO performance in the European Union
- Kenneth W. Abbott & Duncan Snidal, International regulation without international government: Improving IO performance through orchestration
- Manfred Elsig, The World Trade Organization at work: Performance in a member-driven milieu
- Catherine Weaver, The politics of performance evaluation: Independent evaluation at the International Monetary Fund
Sari: The Relationship Between Community Law and International Law after Kadi: Did the ECJ Slam the Door on Effective Multilateralism?
This paper revisits the reasoning of the EU courts in Kadi with the aim of identifying key points of divergence between their respective formal and value-based arguments.
Whereas the Court of First Instance decided Kadi by relying on the conflict of norms provisions laid down in the UN Charter and the EC Treaty, Advocate General Poiares Maduro and the Court of Justice reasoned on the level of rules of recognition. Unlike the Court of First Instance, they both denied that a conflict of norms existed and relied on what may be termed the 'no derogation' thesis to hold that an international agreement cannot derogate from principles that form part of the very foundations of the Community legal order.
An analysis of this reasoning reveals that the judgment of the ECJ displays a considerable dissonance between the formal legal arguments employed by the Court and the substantive values that motivated its reasoning. This dissonance indicates that the dualism embraced by the Grand Chamber was not inevitable, but a result of the value-based, that is ultimately political, choices it made on how to respond to the challenge to its jurisdiction. Moreover, since the Court’s arguments are not based on considerations of international law, its judgment actually makes no direct contribution to the various questions of international law it raises. For example, the judgment adds little to the debate concerning the balancing of human rights and international security, other than in the closed framework of the Community legal order. Indeed, the ECJ seems determined to avoid addressing this question at the level of international law altogether.
On reflection, the precedential value of Kadi may be more limited than commonly thought. The fact that the ECJ approached Kadi from a legal orders perspective makes it tempting to read the judgment as a fundamental reassessment of the relationship between Community law and international law. Whereas the logic of constitutional dualism embraced by the Court certainly has the potential to serve as a catalyst for such a reassessment, the Court did not travel very far down this road in Kadi. Nevertheless, the ECJ's dualism is problematic. From an internal perspective, it may be queried whether it is for the Court and its Advocate General to proclaim that the Community legal system has reached the pinnacle of its constitutionalist evolution by transmuting into a municipal legal order entitled to dualism. From an external perspective, dualism administered in small doses appears to do the international legal system little harm. However, its effects may become altogether more corrosive if dualism is applied as a more frequent remedy.
This book explores the way in which 'development' has functioned within the multilateral trade regime since de-colonisation. In particular, it investigates the shift from early approaches to development under the GATT to current approaches to development under the WTO. It argues that a focus on the creation and transformation of a scientific apparatus that links forms of knowledge about the so-called Third World with forms of power and intervention is crucial for understanding the six decades long development enterprise of both the GATT and the WTO. The book is both topical and necessary given the emphasis on the current round of negotiations of the WTO. The Doha 'Development' Round has been premised on two assumptions. Firstly, that the international community has undertaken an unprecedented effort to address the imbalances of the multilateral trading regime with respect to the position of its developing country members. Secondly, that its successful conclusion represents an historic imperative and a political necessity for developing countries. Through a sustained analysis of the interaction between development thinking and trade practices, the book questions both assumptions by showing how development has always occupied a central position within the multilateral trading regime. Thus, rather than asking the question of what needs to be done in order to achieve 'development', the book examines the way in which development has operated and still operates to produce important, and often unacknowledged, power relations.
Thursday, September 9, 2010
Wednesday, September 8, 2010
There is extensive and detailed academic literature on the legal development of international crimes such as war crimes and crime against humanity. However, not much attention has been paid to other serious crimes, including narcotics-related offences, human trafficking and money laundering, which do not necessarily amount to international crimes in the traditional sense. The purpose of this monograph is to fill this gap and offer a critical analysis of developments in the field of transnational organised crime under international law. The book is divided into two parts. Part I is entitled "Norms, Principles, and Concepts." It traces the history of organised crime and explores key concepts and norms relating to the practice from a multi-disciplinary perspective. It then looks at legal obligations imposed upon States as well as non-State actors in relation to transnational organised crime. Part II illustrates how these norms, principles and obligations are translated and enforced in practice. This will be done through case studies at the level of national law (Thailand, Serbia and the UK), regional law (European Union) and international law (United Nations).
This contribution intends to examine how the ECJ has been responding to the ongoing proliferation of international courts and tribunals in international law. More specifically, the attitude of the ECJ towards the expanding jurisdiction of international courts and tribunals into ever more areas of law will be analyzed more closely.
- Stacy, Helen M. , "Human Rights for the 21st Century: Sovereignty, Civil Society, Culture" - Reviewer: Cooley, Amanda H.
- Patterson, Dennis and Afilalo, Ari, "The New Global Trading Order: The Evolving State and the Future of Trade" - Reviewer: Yearwood, Ronnie R. F.
- Lepard, Brian D., "Customary International Law; A New Theory with Preactical Applications" - Reviewer: Petersen, Niels
- Pérez, Elena Conde , "La denuncia de los tratados. Régimen en la Convención de Viena sobre el derecho de los tratados de 1969 y práctica estatal" - Reviewer: Binder, Christina
This book presents a new theoretical framework for understanding the regulation of international trade. For this purpose, it analyses a series of integrated studies of relations between the EU, the WTO and China. It consists of three main parts. Part I introduces the basic concepts. It surveys the literature on law and globalisation, introduces the concept of sites of governance and the theory of global legal pluralism and sketches the foundations of global legal pluralism. It shows that each site of governance has both a structural dimension, consisting of institutions, norms and dispute resolution processes, and a relational dimension, comprising its relations with other sites of governance. The totality of sites of governance constitutes a new form of global legal pluralism. Part II analyses global legal pluralism in action in relations between the EU, the WTO and China. It examines the construction of relations between sites, ways in which relations between sites give rise to new legal concepts or transform the character of rules, the tension between regionalism and international integration and the governance of international production networks. It emphasises the reciprocal interaction between the structural features and the relational features of sites. Part III explores new directions in global legal pluralism. It first analyses regional trade agreements as a way of creating new sites of governance, focusing on agreements involving China. Then it considers how to enhance ethical values in international trade regulation. Based on an institutional analysis of relations between the WTO and other sites of governance, it proposes ways in which global legal pluralism can be used to reform the WTO, today the predominant institution in the regulation of international trade, including trade between the EU and China.
Tuesday, September 7, 2010
Gervais: Reinventing Lisbon: The Case for a Protocol to the Lisbon Agreement (Geographical Indications)
The Doha Development Agenda (Doha Round) of multilateral trade negotiations at the World Trade Organization (WTO) may fail unless a solution to the establishment of a multilateral register for geographical indications on wines and spirits (GIs) foreseen in the TRIPS Agreement is found. Failure of the Doha Round would entail serious intended and unintended consequences for the world trading system. Europe’s insistence on a Doha deal on GIs in now accompanied by demands from several developing countries for an extension of GI protection to products other than wines and spirits. Those demanders consider the current emphasis on alcoholic beverages to be both culturally discriminatory and a commercial impediment to the ability to collect the potential additional rents associated with GIs on various products (coffee, tea, cocoa, textiles, etc.). They argue that international GI protection would support their rural and traditional products, which in turn would lead to “development form within,” a development strategy that prioritizes local autonomy and broad, community-wide development goals. The GI issue has direct implications for future global food consumption patterns. As such, GIs have environmental significance and form an increasingly relevant part of global agricultural and food policy discussions.
In spite of their importance in the Doha Round, negotiations on the establishment of a GI register and its possible extension beyond wines and spirits at the WTO have been at an impasse for several years. This Article is an attempt to move the discussions, and the Doha Round, forward. My focus is on the establishment of the TRIPS GI register and is relationship with the 1958 Lisbon Agreement and its register for “appellations of origin.” My suggestion is that the Lisbon register offers the best substrate to establish the TRIPS register, with or without an extension to products other than wines and spirits. Real or perceived Lisbon deficiencies could be handled appropriately by adopting a protocol to the Lisbon Agreement. After an examination of differences between the Lisbon and TRIPS Agreements, and the Compatibility of a GI register with US trade practices, the Article provides a detailed strategy to achieve a protocol to the Lisbon system functioning as the TRIPS register.
- Janet McKnight, Child Soldiers in Africa: A Global Approach to Human Rights Protection, Enforcement and Post-Conflict Reintegration
- Henry Onoria, Locus Standi of Individuals and Non-State Entities Before Regional Economic Integration Judicial Bodies in Africa
- Anthony O. Nwafor, Comparative Perspectives on Euthanasia in Nigeria and Ethiopia
Singh: Constitutionalism in International Law During the Times of Globalisation: A Sociological Appraisal
Unfortunately, international law has never been sociologically thick. Whereas modernity is the most important issue intriguing sociologists like Habermas, Oommen, and Singh, constitutionalism has gripped leading international lawyers like Bogdandy, Baxi, Dunoff, Koskenniemi and Maduro. If globalisation is creating a virtual synthesis of various norms, new sociological studies have identified a return of ethnicity or localism. That constitutionalism, as a phenomenon, is responsible for synthesis of international norms of European and non-European states, is a utopia of international law. I understand constitutionalism as an effort of to stitching together the international community/states divided on monist and dualist lines. This paper will try to evaluate the constitutional discourse with a sociological approach.
- Jayashree Watal, US–China Intellectual Property Dispute—A Comment on the Interpretation of the TRIPS Enforcement Provisions
- Henning Grosse Ruse-Khan, China—Intellectual Property Rights: Implications for the TRIPS-Plus Border Measures
- Xuan Li, The Agreement on Trade-Related Aspects of Intellectual Property Rights Flexibilities on Intellectual Property Enforcement: The World Trade Organization Panel Interpretation of China-Intellectual Property Enforcement of Criminal Measures and Its Implications
- Tomer Broude, It's Easily Done: The China-Intellectual Property Rights Enforcement Dispute and the Freedom of Expression
- Barry Buzan & Mathias Albert, Differentiation: A sociological approach to international relations theory
- Tomislav Z. Ruby & Douglas Gibler, US professional military education and democratization abroad
- Larissa A. Fast, Mind the gap: Documenting and explaining violence against aid workers
- Cameron G. Thies, Explaining zones of negative peace in interstate relations: The construction of a West African Lockean culture of anarchy
- Neil A. Englehart, Representing civilization: Solidarism, ornamentalism, and Siam’s entry into international society
- Dan Bulley, The politics of ethical foreign policy: A responsibility to protect whom?
- Zeki Sarigil, Bargaining in institutionalized settings: The case of Turkish reforms
- Jessica Shadian, From states to polities: Reconceptualizing sovereignty through Inuit governance
- David A. Lake, Rightful Rules: Authority, Order, and the Foundations of Global Governance
- Madeleine O. Hosli & Christine Arnold, The Importance of Actor Cleavages in Negotiating the European Constitution
- Ellen A. Cutrone & Benjamin O. Fordham, Commerce and Imagination: The Sources of Concern about International Human Rights in the US Congress
- Andrew Kerner & Jeffrey Kucik, The International and Domestic Determinants of Insider Trading Laws
- Nathan Lillie, Bringing the Offshore Ashore: Transnational Production, Industrial Relations and the Reconfiguration of Sovereignty
- Amir Lupovici, The Emerging Fourth Wave of Deterrence Theory—Toward a New Research Agenda
- Erin K. Wilson, Beyond Dualism: Expanded Understandings of Religion and Global Justice
- Trevor Rubenzer & Steven B. Redd, Ethnic Minority Groups and US Foreign Policy: Examining Congressional Decision Making and Economic Sanctions
- David R. Dreyer, Issue Conflict Accumulation and the Dynamics of Strategic Rivalry
- Rick Travis, Problems, Politics, and Policy Streams: A Reconsideration US Foreign Aid Behavior toward Africa
- Xun Cao, Networks as Channels of Policy Diffusion: Explaining Worldwide Changes in Capital Taxation, 1998–2006
- Edward Schatz & Renan Levine, Framing, Public Diplomacy, and Anti-Americanism in Central Asia
- Alexandru Grigorescu, The Spread of Bureaucratic Oversight Mechanisms across Intergovernmental Organizations
Monday, September 6, 2010
The friendly settlement procedure is an important tool for the reduction of the European Court of Human Rights' (ECtHR) case load. Recent practice demonstrates that this procedure is increasingly resorted to by applicants and Contracting States. This book evaluates this largely unexplored instrument from doctrinal as well as practical perspectives, making recommendations to render the negotiations before the ECtHR more efficient and professional.
The book examines questions relating to the admissibility as well as to the practical manageability of friendly settlements. In contrast to ordinary civil proceedings, the friendly settlements procedure has a mixed legal character: while settlements are an inter-partes procedure, they are also binding under international law, as the ECtHR often hands them down in the form of a judgment. In this context, the question arises as to how far the proceedings can be 'privatised' and where the limits to the monetisation of human rights violation lie. This book evaluates possible abuses and identifies the precautions that need to be taken in the framework of friendly settlements. This issue is linked to the question of whether the legal framework which governs the conclusion of a friendly settlement should be formulated in a more concrete manner, given that the position of the parties is unequal and that the role of the Court is hardly defined in this context. Furthermore, the book empirically examines whether the friendly settlement procedure is as advantageous in comparison to ordinary proceedings as others have argued. It also questions whether the friendly settlements procedure can provide the applicant with 'more money faster'.
This overview of the role played by the precautionary principle in international trade law, European law and national law compares how precautionary considerations have been applied in the fields of pesticide regulation and the regulation of base stations for mobile telephones in Sweden, the UK and the US. A number of problems in the current application of the precautionary principle are identified and discussed. For example, it is shown that a firm reliance on a wide and open-ended precautionary principle may lead to problems with the consistency, foreseeability, effectiveness and efficiency of measures intended to reduce environmental or health risks. It is suggested that the precautionary principle indeed may be an important tool, but that in order to be acceptable it must be coupled with strong requirements on the performance of risk assessments, cost/benefit analyses and risk trade-off analyses.
The growing number of international courts and tribunals and their burgeoning case law have fuelled concerns about the fragmentation of international law. This arises as a consequence of both the specialized regimes these courts create and the multiple ways in which they may interpret international law emanating from other sources.
This book considers this issue by examining the busiest and arguably most successful international court, the European Court of Human Rights. More specifically, it focuses on the jurisprudence of the Court and its predecessor, the European Commission of Human Rights, covering a range of special human rights regimes, treaty law, and the case law of the International Court of Justice.
The author assesses whether the Court has been able to adopt a coherent, comprehensive approach to the interpretation and evaluation of international law and thus the extent to which it has been able to contribute to the development and coherence of international law.
Several current international legal issues are related to the concept of legal personality, including the determination of international rights and duties of non-state actors and the legal capacities of transnational institutions. When addressing these issues, different understandings of legal personality are employed. These concepts consider different entities to be international persons, state different criteria for becoming one and attach different consequences to being one. Roland Portmann systematizes the different positions on international personality by spelling out the assumptions on which they rest and examining how they were substantiated in legal practice. He puts forward the argument that positions on international personality which strongly emphasize the role of states or effective actors rely on assumptions that have been discarded in present international law. The principal argument is that international law has to be conceived as an open system, wherein there is no presumption for or against certain entities enjoying international personality.
Sunday, September 5, 2010
Mit dem Inkrafttreten des Vertrages von Lissabon haben die Solidaritätspflichten in der Europäischen Union eine neue Dimension erreicht. Dabei sind in erster Linie die Beistandsverpflichtung gemäß Art. 42 Abs. 7 EU sowie die allgemeine Solidaritätsverpflichtung nach Art. 222 AEUV hervorzuheben. Können in einem solchen System einzelne EU-Mitgliedstaaten noch an ihrer Neutralität festhalten? Diese Frage prüft der Autor in diesem Band im Besonderen mit Blick auf die Situation Österreichs. Dabei untersucht er auch, welche Bedeutung der Neutralität im geltenden Völkerrecht zukommt. Abschließend wird versucht, das traditionelle Neutralitätsrecht in Einklang zu bringen mit den Erfordernissen der modernen Völkerrechtsordnung. Das Werk zeigt, dass neutrale Staaten auf diesem Wege eine wichtige Rolle in der aktuellen Friedensordnung spielen können.