- October 26, 2011: Christian J. Tams (Univ. of Glasgow - Law), "The Jus Contra Bellum: Some Methodological Reflections"
- November 23, 2011: Başak Çali (Univ. College London - Political Science), "Beyond Judicial Internationalism and Nationalism: The Quasi-Authority of the Judgments of the European Court of Human Rights in Domestic Courts"
- February 1, 2012: Abdul G. Koroma (Judge, International Court of Justice), "International Law and Multiculturalism"
- February 15, 2012: Irini Papanicolopulu (Univ. of Oxford and Univ. of Milano-Bicocca - Law), "The Law Applicable to Humans at Sea"
- March 16, 2012: Amanda Perrey-Kessaris (Univ. of London, School of Oriental and African Studies - Law), "Socio-Legal Approaches to International Economic Law: Text, Context, Subtext"
Saturday, October 15, 2011
Friday, October 14, 2011
- September 20, 2011: Tim Meyer (Univ. of Georgia - Law), “Codifying Customary International Law” - Discussant: Jessica Stanton (Univ. of Pennsylvania - Political Science)
- October 4, 2011: Claire Kelly (Brooklyn Law School), “Conceptions of Legitimacy among International Entities in the Global Political Economy” - Discussant: Andrew Strauss (Widener Univ. - Law)
- October 25, 2011: R. Daniel Kelemen (Rutgers Univ. - Political Science), “The Political Foundations of Judicial Independence in the European Union” - Discussant: Fernanda Nicola (American Univ. - Law)
- November 15, 2011: Anthea Roberts (London School of Economics and Political Science - Law), “Choice of Analogies: Rethinking the Nature of the Investment Treaty System” - Discussant: William Burke-White (Univ. of Pennsylvania - Law)
- James Munro, The relationship between the origins and regime design of the ASEAN Intergovernmental Commission on Human Rights (AICHR)
- Paul Stenner, Subjective dimensions of human rights: what do ordinary people understand by ‘human rights’?
- Subramanian Ramamurthy, Towards a human rights compatible nuclear liability regime: some human rights reflections from India
- Soren Blau & Luis Fondebrider, Dying for independence: proactive investigations into the 12 November 1991 Santa Cruz massacre, Timor Leste
- Lydia Brashear Tiede, Taking rights seriously in Chile
- Margaret Eastwood, Lessons in hatred: the indoctrination and education of Germany's youth
- Lucia Liste Muñoz & Indra de Soysa, The blog versus big brother: new and old information technology and political repression, 1980–2006
- Aidan Hehir, The responsibility to protect in international political discourse: encouraging statement of intent or illusory platitudes?
- Stefano Passini, Beyond European Union enlargement: Albania and human rights in the realm of everyday life
- October 3, 2011: J. Christopher McCrudden (Univ. of Oxford - Law and Univ. of Michigan - Law), International Commercial Arbitration and Islam
- October 10, 2011: Liu Junhai (Renmin Univ. of China - Law), China's 'Going Out' Strategy: What U.S. Companies Need to Know About Chinese Corporate Governance and Corporate Law
- October 24, 2011: Bruno Simma (Judge, International Court of Justice and Univ. of Michigan - Law), Alive and Kicking, More than Ever: Observations of an Insider on the Health of International Courts and Tribunals
- October 31, 2011: Nuala Mole (The AIRE (Advice on Individual Rights in Europe) Centre), 2011's Hot Topics from the European Court of Human Rights—The Litigator's Perspective
- November 7, 2011: Michael S. Barr (Univ. of Michigan - Law), The New International Financial Architecture
- November 14, 2011: Edward A. Parson (Univ. of Michigan - Law), Climate Engineering: Novel Challenges to Global Governance
The International Organizations Interest Group of the American Society of International Law will hold a works-in-progress workshop on October 28, 2011, at the Fletcher School of Law and Diplomacy, Tufts University, Medford, MA (near Boston). The workshop will begin at 9am and end by 4:30pm.
The workshop's format will be as follows. Each paper will be introduced by a commentator for about ten minutes. The author will have the opportunity to respond, if he or she wishes to do so. The floor will then be opened for comments, reactions, and discussion from the group as a whole. The workshop is conducted on the assumption that everyone has read all of the papers in advance. One need not present a paper or comment on a paper to participate.
The workshop is free for ASIL members and $20 for non-members. Participants must register here. Lunch will be provided. Papers will be distributed the week of October 17.
The papers that will be presented include:
- Kristen Boon (Seton Hall Univ. – Law): “The High Seas Fisheries: A Case Study in Scarcity and Redistribution in International Law”
- Antonia Chayes (Tufts Univ. – Fletcher School): “On Chapter VII 1/2 of the UN Charter”
- Kristina Daugirdas (Univ. of Michigan – Law): “A Multilateral Substitute for Foreign Aid Legislation?”
- David Gartner (Arizona State Univ. – Law): “The World Bank, the IMF, and Transparency in the 21st Century”
- Kenneth Rodman (Colby College – Government): “Manipulated Commitments: The International Criminal Court in Uganda”
- Vijayashri Sripati (Postdoctoral fellow, Univ. of Toronto – Political Science and Adjunct Professor, Osgoode Hall): “United Nations Constitutional Assistance [UNCA]: New Additions to the ‘Standard of Civilization’?”
We look forward to seeing you at Fletcher.
Jacob Katz Cogan
Justin M. Jacinto
Drumbl: ‘Germans are the Lords and Poles are the Servants’: The Trial of Arthur Greiser in Poland, 1946
In the aftermath of World War II, the first conviction of an influential Nazi German official for the crime of waging aggressive war was delivered not by the International Military Tribunal at Nuremberg, but, rather, by the Supreme National Tribunal of Poland sitting in Poznán. The accused was Arthur Greiser. Beginning in September 1939, Greiser served as Gauleiter (i.e. Governor) of the Warthegau, a large expanse of western Poland that had been illegally annexed to Nazi Germany. The Warthegau's residents suffered brutally under Greiser's boot. The Polish Tribunal sentenced Greiser to death on July 9, 1946. His execution by public hanging from a plain wooden gallows took place in the early hours of the morning of July 21, 1946. Fifteen thousand spectators attended.
The Greiser judgment was a forerunner not only on the crime of aggression. It also liberally incorporated Raphael Lemkin’s understanding of genocide - including cultural and social aspects - although it did so within the framework of the charge of 'exceeding the rights accorded to the occupying authority by international law'.
The Greiser judgment, nevertheless, has received very little attention in international legal or policy circles. It remains largely overlooked.
This essay intends to bring Greiser's trial, judgment, and conviction more directly to the attention of international criminal lawyers, professionals committed to transitional justice, and a general readership concerned with redressing mass atrocity.
Contemporary law and policy can learn much from Greiser's conviction, in particular regarding the contours of the crime of aggressive war, as well as who, exactly, should be held responsible for such acts and how.
Estreicher: Privileging Asymmetric Warfare (Part III)?: The Intentional Killing of Civilians Under International Humanitarian Law
The overarching objective of the law of armed conflict, also called international humanitarian law (IHL), is the minimization of harm to civilians during such conflicts. Yet, at least in some circles, there is a reluctance to make evaluative judgments about non-state groups who, in a variety of contexts, intentionally target civilians as a tactic in pursuing their political or military objectives. Sometimes, such non-state actors target civilians affiliated with the enemy state simply as way of demoralizing or harming the enemy. In other situations, these actors attack civilians living in the enemy state’s (or a third party state’s) territory without regard to whether they are citizens or otherwise affiliated with the enemy state. As is true with regard to locating and deploying their military assets among dense civilian gatherings, the non-state group’s purpose is to provoke a military response from the enemy state that will result in the death of civilians in the areas the non-state group controls or occupies; such deaths help recruit new enlistees from the outraged civilian population, and stoke outcry from certain sectors of the international community.
The focus of this paper is on Common Article 3 of the Geneva Conventions of 1949 - the strongest, least debatable basis for applying certain IHL principles to those who kill noncombatants during internal armed conflict. It seeks to demonstrate that Common Article 3 binds both the state and those seeking its violent overthrow. The binding force of Common Article 3 flows both from the positive premise that states can legislate on behalf of all those within its territory, even its armed opponents, and from the fact that Common Article 3 reflects customary international law.
This paper is a call for moral and legal clarity. Politically-inspired murder of civilians during armed conflict is murder, pure and simple, and should be regarded as such by the world. Such acts, whether they occur in interstate or wholly internal armed conflicts, violate not only the domestic law of the victim’s state and of the state where the acts occur, but also violate well-established treaty and customary law. Murder of civilians is not a legitimate part of armed struggle, and cannot be justified by pleas of needing to right wrongs suffered at the hands of other states, or equalizing the balance of forces between the weak and the strong. The murderer of civilians, like the pirate, slave trader or torturer, merits the condemnation of all mankind, of all organized society.
- Gralf-Peter Calliess, Introduction: Transnational Corporations Revisited
- Gunther Teubner, Self-Constitutionalizing TNCs? On the Linkage of “Private” and “Public” Corporate Codes of Conduct
- Sarianna M. Lundan, The Coevolution of Transnational Corporations and Institutions
- Peter Muchlinski, The Changing Face of Transnational Business Governance: Private Corporate Law Liability and Accountability of Transnational Groups in a Post-Financial Crisis World
- Horst Eidenmüller, The Transnational Law Market, Regulatory Competition, and Transnational Corporations
- Larry Catá Backer, Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board, and the Global Governance Order
- Karsten Nowrot, Transnational Corporations as Steering Subjects in International Economic Law: Two Competing Visions of the Future?
- Gralf-Peter Calliess & Jens Mertens, Transnational Corporations, Global Competition Policy, and the Shortcomings of Private International Law
Colloque international organisé le 14 novembre par le CEDIN, Centre de Droit International de Paris Ouest, sur la notion de la responsabilité de protéger, 10 ans après son apparition.
Thursday, October 13, 2011
- Robert P. Barnidge, Jr. & Narasimhalu Manohar, Visions of International Law: Lessons from the 123 Agreement
- James A. Green, India and a Customary Comprehensive Nuclear Test-Ban: Persistent Objection, Peremptory Norms and the 123 Agreement
- Erika Hennequet, The Relationship Between the 123 Agreement and International Environmental Law
- B.C. Nirmal, 123 Agreement and International Environmental Law
- Joelien Pretorius, The Nuclear Non-Proliferation Export Norm and the 123 Agreement
- Mohit Kumar Gupta, India's 2010 Civil Liability for Nuclear Act: An Analysis of Domestic and International Legal Issues
- Valeria Eboli, Some Observations on Nuclear Damage, International Environmental Law, and the 123 Agreement
- Hiroaki Nakanishi, Rethinking the 123 Agreement: A Trade-Off Between India's Right to a Nuclear Test and Civilian Nuclear Cooperation
Whenever a territorial state or other state with a relevant link to a core international crime - a crime against humanity, genocide or war crime - does not prosecute the crime in question, universal jurisdiction prosecutions by individual states and the International Criminal Court (ICC or the Court) are the only two permanent criminal law enforcement regimes available. This chapter - written for the book 'The First Global Prosecutor: Constraints and Promise' (Martha Minow and Alex Whiting eds., The University of Michigan Press, forthcoming 2012) - proposes a theoretical framework to analyze what the relationship between these two regimes should be and has actually been. The core argument for this framework is that the International Criminal Court and its Prosecutor have more legitimacy than universal jurisdiction prosecutions because they are more representative, accountable and transparent to humanity, and more respectful of state sovereignty.
This theoretical framework enables the chapter to analyze three central issues in the relationship between the two regimes. The first of these issues is whether universal jurisdiction prosecutions have any role to play after the creation of the ICC. The chapter argues that although the ICC has more legitimacy, universal jurisdiction still has a role to play in the prosecution of core international crimes given the substantial jurisdictional gaps, institutional and political constraints, and limited capacity of the ICC. Secondly, based on a global survey of universal jurisdiction cases, the chapter demonstrates that universal jurisdiction has played a very limited role in supplementing the work of the Court and its Prosecutor, and articulates possible reasons for this lack of collaboration. Finally, the chapter contends that the ICC’s principle of complementarity that regulates the relationship between the ICC and domestic prosecutions should not regulate the relationship between the ICC and universal jurisdiction. Rather, the ICC and its Prosecutor should adopt a more flexible approach in this area that acknowledges the higher legitimacy of the Court while also encouraging universal jurisdiction prosecutions that supplement the Court’s work.
Through an analysis of UN operations including international territorial administration, refugee camps, peacekeeping, the implementation of sanctions and the provision of humanitarian aid, Guglielmo Verdirame shows that the powers exercised by the UN carry a serious risk of human rights abuse. The International Law Commission has codified and developed the law of institutional responsibility, but, while indispensable, these principles and rules cannot on their own ensure compliance and accountability. The 'liberty deficit' of the UN and of other international organisations, thus remains an urgent legal and political problem. Some solutions may be available; indeed, recent state and institutional practice offers interesting examples in this respect. But at a fundamental level we need to ask ourselves whether, judged on the basis of the principle of liberty, the power shift from states to international organisations is always beneficial.
This unique new work of reference traces the origins of the modern laws of warfare from the earliest times to the present day. Relying on written records from as far back as 2400 BCE, and using sources ranging from the Bible to Security Council Resolutions, the author pieces together the history of a subject which is almost as old as civilisation itself. The author shows that as long as humanity has been waging wars it has also been trying to find ways of legitimising different forms of combatants and ascribing rules to them, protecting civilians who are either inadvertently or intentionally caught up between them, and controlling the use of particular classes of weapons that may be used in times of conflict. Thus it is that this work is divided into three substantial parts: Volume 1 on the laws affecting combatants and captives; Volume 2 on civilians; and Volume 3 on the law of arms control.
This second book on civilians examines four different topics. The first topic deals with the targetting of civilians in times of war. This discussion is one which has been largely governed by the developments of technologies which have allowed projectiles to be discharged over ever greater areas, and attempts to prevent their indiscriminate utilisation have struggled to keep pace. The second topic concerns the destruction of the natural environment, with particular regard to the utilisation of starvation as a method of warfare, and unlike the first topic, this one has rarely changed over thousands of years, although contemporary practices are beginning to represent a clear break from tradition. The third topic is concerned with the long standing problems of civilians under the occupation of opposing military forces, where the practices of genocide, collective punishments and/or reprisals, and rape have occurred. The final topic in this volume is about the theft or destruction of the property of the enemy, in terms of either pillage or the intentional devastation of the cultural property of the opposition.
This third volume deals with the question of the control of weaponry, from the Bronze Age to the Nuclear Age. In doing so, it divides into two parts: namely, conventional weapons and weapons of mass destruction. The examination of the history of arms control of conventional weapons begins with the control of weaponry so that one side could achieve a military advantage over another. This pattern, which only began to change centuries after the advent of gunpowder, was later supplemented by ideals to control types of conventional weapons because their impacts upon opposing combatants were inhumane. By the late twentieth century, the concerns over inhumane conventional weapons, were being supplemented by concerns over indiscriminate conventional weapons.
The focus on indiscriminate weapons, when applied on a mass scale, is the focus of the second part of the volume. Weapons of Mass Destruction are primarily weapons of the latter half of the twentieth century. Although both chemical and biological warfare have long historical lineages, it was only after the Second World War, that technological developments meant that these weapons could be applied to cause large-scale damage to non-combatants. Nuclear weapons are a truly modern invention. Despite being the newest Weapon of Mass Destruction, they are also the weapon of which most international attention has been applied, although the frameworks by which they were contained in the last century, appear inadequate to address the needs of current times.
Wednesday, October 12, 2011
Shelton: International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion
Different countries incorporate and interpret international law in different ways. This book provides a systematic analysis of the domestic constitutional regime of over two dozen countries, setting out the status accorded to international law in those countries and its normative weight, as well as problems relating to its implementation.
This country-by-country comparison allows the book to examine how the international legal order and domestic legal systems interact and influence each other. Through a series of chapters on the role of international law in 27 countries throughout the world, it shows a growing tendency towards greater democratic participation in treaty-making coupled with a significant utilization of informal agreements that by-pass such participation, as well as a role for non-binding normative instruments as persuasive authority in domestic judicial decision-making. The chapters suggest a stronger attachment to international law in legal systems that have survived a period of repression, resulting in many cases in a higher normative status for international human rights instruments in those states. The impact of the European Union on the constitutional order of its member states is also examined.
With the proliferation of human rights treaties after World War II, activists, scholars, and citizens have held the hope that international law could help to protect human rights and reduce abuses. This paper begins with the idea that the effects of treaties on human rights performance may depend in part on how domestic legal systems articulate with international law. Perhaps international human rights treaties have stronger effects on national human rights practices in countries whose constitutions give treaty law domestic legal status. Treaties may also have a greater effect on human rights practices in countries where independent courts can apply human rights rules for the benefit of claimants, even when they assert claims against their own governments. This study is a first attempt to explore the interrelated effects of treaties, constitutions, and courts on human rights performance. The basic proposition is that human rights treaties have a greater influence on rights in countries whose constitutions acknowledge international law and whose courts are independent of the political branches of government. The analysis tests that proposition using data from about 150 countries across 20 or more years. The results offer some evidence that treaties, constitutions, and courts do combine, at times, to improve human rights performance.
This paper presented at a conference at the University of Helsinki's Erik Castrén Institute for International Law and Human Rights is an exploration of the relationship between international criminal justice and R2P, and how the two are part of evolving interventionist discourses that reaffirm the centrality of at least some states and of the Security Council rather than fundamentally challenge them.
The system of the European Convention of Human Rights imposes positive obligations on the state to guarantee human rights in circumstances where state agents dot not directly interfere. In addition to the traditional/liberal negative obligation of non-interference, the state must actively protect the human rights of individuals residing within its jurisdiction. The liability of the state in terms of positive obligations induces a freestanding imperative of human rights that changes fundamentally the perception of the role of the state and the participatory ability of the individual, who can now assert their human rights in all circumstances in which they are relevant. In that regard, positive obligations herald the most advanced review of the state’s business ever attempted in international law.
The book undertakes a comprehensive study of positive obligations: from establishing the legitimacy of positive obligations within the system of the Convention to their practical implementation at the national level. Analysing in depth legal principles that pervade the whole system of the Convention, a coherent methodological framework of critical stages and parameters is provided to determine the content of positive obligations in a consistent, predictable and realistic manner.
This study of the Convention explains and critically analyses the state’s positive obligations, as imposed by the European Court of Human Rights, and sets out original proposals for their future development.
International economic law is very likely to be one of the most significant areas of law throughout the twenty-first century. As is well-known, it is an inter-disciplinary area of law covering very broad and different fields since it deals with all economic aspects of relations among the subjects of international law. In today’s world, the relations among States, international organisations and individuals have dramatically intensified. It is a sine qua non requirement that the conflicts or cases deriving from the application of the principles of international economic law must be solved by the dispute settlement mechanisms of international law, which are crucial both for the protection of international peace and security on the one hand and for the implementation of international economic law on the other.
The book focuses on the relationship between the rules of public international law and international economic law from the point of view of dispute settlement mechanisms. It consists of the following Chapters: International Economic Law; New Challenges and Issues in International Finance Law; Dispute Settlement in International Trade Law and Dispute Settlement in International Investment Law. Finally, the book draws some general conclusions and provides certain suggestions for future research and practice in the field.
Tuesday, October 11, 2011
- R. Lorenzo Ponce de León, The Coming of Age of Military Law and Jurisdiction in the English- Speaking Contries
- O. Barsalou, The History of Reprisals Up to 1945: Some Lessons Learned and Unlearned for Contemporary International Law
- A. Braem, La nouvelle législation sur les armes du Kosovo
Symposium: The 2010 UNIDROIT Principles of International Commercial Contracts: Towards a “Global” Contract Law
UNIDROIT’s Principles of International Commercial Contracts, first adopted in 1994 and revised in 2004, are widely used in international contracting and arbitration practice as well as by domestic courts and international arbitral tribunals to interpret and supplement both contractual provisions and relevant domestic law. The most recent amendments were adopted in 2010 and given final approval by UNIDROIT’s Governing Council in May 2011.
This symposium will provide an overview of the Principles from a trans-Atlantic perspective, with particular focus on the most recent revisions (which concern restitution in case of failed contracts, illegality, conditions, and plurality of obligors and obligees). The speakers and roundtable participants include experts on the Principles and more generally in the field of international commercial transactions and dispute resolution.
The Symposium will be of particular interest to private practitioners and corporate counsel involved in drafting and negotiating international commercial contracts as well as in litigating or arbitrating disputes arising thereunder. Those who teach international commercial transactions will find it especially timely and useful.
It will also offer a unique opportunity to learn about UNDROIT’s overall agenda and achievements. UNIDROIT’s Secretary-General, José Angelo Estrella Faria, will present the keynote.
- Scientific Articles
- Fred Grunfeld, International Law and International Relations: Norm and reality or viceversa
- Hitoshi Nasu, The expanded conception of security and International Law: Challenges to the UN Collective Security system
- Ramses A. Wessel, Division of international responsibility between the EU and its member states in the area of foreign policy, security and defence policy
- Jana Panakova, Law and politics of universal jurisdiction
- Michael Blakeney, Patents and plant breeding: Implications for food security
- Opinion Articles
- Hilla Dayan, Israel against democracy
- Monica Serrano, The Responsibility to Protect: Libya and Côte D’Ivoire
- Monica den Boer, Preventive empires: Security dynamics at multiple levels of governance
- Gustavo Mauricio Bastien Olvera, Non-state actors and human rights: The case of arms manufacturers
Sacerdoti: Precedent in the Settlement of International Economic Disputes: The WTO and Investment Arbitration Models
The issue of precedent in international law attracts currently special interest in view of the proliferation of international courts and the lack of institutional relations between them. Notwithstanding the absence of "stare decisis" l an international court looking at previous decisions relevant for a case, even originating from a different court, contributes however to predictability, and coherence of international law through adjudication. The paper first reviews the common law and civil law sytems. I then analyses the practice of the ICJ and of other international courts such as the ECHR, the ECJ and international criminal courts. The paper thereafter concentrates on the reliance on precedents within the WTO dispute settlement system which features an orginal appeal system wherein panels are expected to follow Appellate Body precedents. The role of previous decisions in commercial and investment arbitration is thereafter reviewed, highlighting the diffeences between the two models in respect to ICSID arbitration. The paper concludes highlighting the desirability of "jurisprudence constante" by ICSID Annulment Commitees.
- José Mª Alcántara, Frazer Hunt, Svante O. Johansson, Barry Oland, Kay Pysden, Milos Pohunek, Jan Ramberg, Douglas G. Schmitt, William Tetley, C.M.Q.C, & Julio Vidal, A Blue Print for a Worldwide Multimodal Regime
- Nuno Andrade Pisarra, Breves considerações sobre a lei aplicável ao contrato de seguro
- María José Cervell Hortal, Pacientes en la Unión Europea: libertad restringida y vigilada
- Sara Lidia Feldstein de Cárdenas & Luciane Klein Vieira, La noción de consumidor en el Mercosur
- Pietro Franzina, The law applicable to divorce and legal separation under Regulation (EU) no. 1259/2010 of 20 December 2010
- Federico F. Garau Sobrino, Las fuentes españolas en materia de obligaciones alimenticias. ¿Hacia un Derecho Internacional Privado extravagante?
- Cesáreo Gutiérrez Espada, La adhesión española (2011) a la Convención de las Naciones Unidas sobre las inmunidades jurisdiccionales de los Estados y de sus bienes (2005)
- Francesco Seatzu, La proposta per la riforma del Regolamento «Bruxelles I» e i provvedimenti provvisori
- Sara Tonolo, L’Italia e il resto del mondo nel pensiero di Pasquale Stanislao Mancini
- Ana-Paloma Abarca Junco & Marina Vargas-Gómez Urrutia, Vecindad civil de la mujer casada: nuevas reflexiones en torno a la inconstitucionalidad sobrevenida del art. 14.4 C.c. y la retroactividad de la Constitución española en relación a los modos de adquisición de su vecindad civil
- Elisa Baroncini, La politica cinese sulle esportazioni dinanzi al sistema di risoluzione delle controversie dell’OMC: il report del Panel nel caso China – Raw Materials
- Pilar Juárez Pérez, La inevitable extensión de la ciudadanía de la Unión: a propósito de la STJUE de 8 de marzo de 2011 (asunto Ruiz Zambrano)
- Carlos Llorente Gómez de Segura, “Forum non conveniens” revisited: el caso Spanair
- Pilar Maestre Casas, El pasajero aéreo desprotegido: obstáculos a la tutela judicial en litigios transfronterizos por incumplimientos de las compañías aéreas (A propósito de la STJUE de 9 julio 2009, Rehder, As. C-204/08)
- María Dolores Ortiz Vidal, Ilonka Fürstin von Sayn-Wittgenstein: una princesa en el Derecho internacional privado
- Esther Portela Vázquez, La Convención de la UNESCO sobre la Protección del Patrimonio Subacuático. Principios Generales
- Alessandra Zanobetti, Employment contracts and the Rome Convention: the Koelzsch ruling of the European Court of Justice
Monday, October 10, 2011
Cet ouvrage apporte un éclairage sur les fondements et la mise en oeuvre du recours à l'arbitrage, procédé privilégié par les organisations pour le règlement de leurs différends. Il révèle l'idée de la justice transportée par les organisations internationales, qui est celle d'une justice privée à laquelle souscrit l'organisation et qui découle, parfois, de la volonté des Etats autant, en fait, que l'organisation dérive de cette volonté.
The 20th Century is often said to be the bloodiest century in recorded history. In addition to its wars, the century witnessed many grave and widespread human rights abuses. But what stands out in historical accounts of those abuses, perhaps even more than the cruelty of their perpetration, is the inaction of bystanders. Why do people and their governments repeatedly fail to react to genocide and other mass scale human rights violations?
The thesis of this chapter is that, despite all the governance changes that the IFIs have undergone, they still do not have adequate governance arrangements and will need to undergo further reform if they are to perform their mandates effectively. In order to establish this thesis, this chapter is divided into four parts. First, it describes the reforms the IFIs have agreed to and have implemented. Second, it sets out some benchmarks against which these governance reforms can be measured. Third, it assesses the adequacy of the reforms undertaken based on the benchmarks identified in the second section. The final section is a conclusion.
The American law of arbitration has for some reason been replete with what we have become accustomed to call “trilogies” – and the last two terms of the U.S. Supreme Court have curiously continued that pattern. Once again the Court has handed us three leading cases on closely-related themes – and these decisions have turned out in fact to be in many ways the most interesting of the lot. (I am referring of course to Stolt-Nielsen, Rent-A-Center, and Concepcion.)
All three amount to extended riffs on the Question of Questions – the scope of arbitral power: And so the Court has continued to dip its finger into this rich mixture – compounded of notions of judicial review, “arbitrability,” “separability,” compétence/compétence, and the preemption of state law – all of our hard-earned lore and learning is there. Apparently it is now well beyond the power of arbitrators to hold that “classwide proceedings are permitted,” at least without some pretty special authorization (Stolt-Nielsen) – while it is well beyond the power of courts to hold that they must be – certainly not when the parties have agreed to an arbitral determination (Rent-A-Center), and even when they haven’t (Concepcion).
It seems reasonably clear that these cases will continue to generate endless discussion. Undoubtedly for the moment the greatest salience will be with respect to arbitration clauses in contracts of adhesion entered into by consumers and employees – although this recent jurisprudence has the potential of sweeping far more broadly. Things now seem curiously muddled: If our law of arbitration no longer seems to have any clear unifying theme, this suggests that private adjudication – rather than presenting us as it once did us with a coherent and self-contained body of doctrine – has become a hostage to a game played out on a larger stage, a pawn of wider, systemic “political” concerns. Throughout the “trilogy” we have seen much familiar learning yoked to the service of a market-driven political agenda, in the process inevitably becoming warped and almost unrecognizable. And so – yet another untoward result – these cases will require the reevaluation of what seemed, for a while, to constitute comfortably settled certainties. Here is at least one step in that direction.
- Research Articles
- Lars-Erik Cederman, T. Camber Warren & Didier Sornette, Testing Clausewitz: Nationalism, Mass Mobilization, and the Severity of War
- Krzysztof J. Pelc, Why Do Some Countries Get Better WTO Accession Terms Than Others?
- Emilie M. Hafner-Burton, Laurence R. Helfer & Christopher J. Fariss, Emergency and Escape: Explaining Derogations from Human Rights Treaties
- Idean Salehyan, Kristian Skrede Gleditsch & David E. Cunningham, Explaining External Support for Insurgent Groups
- Research Notes
- Sarah C. Kaczmarek & Abraham L. Newman, The Long Arm of the Law: Extraterritoriality and the National Implementation of Foreign Bribery Legislation
- Megumi Naoi & Ikuo Kume, Explaining Mass Support for Agricultural Protectionism: Evidence from a Survey Experiment During the Global Recession
Sunday, October 9, 2011
Will international law colonize the last bastion of sovereign discretion? As a matter of traditional doctrine, international law has had little to say about the citizenship practices of states and the terms on which states determine the boundaries of their memberships. Through much of the Westphalian era, states have been essentially unconstrained with respect to who gets citizenship and on what terms.
That is now changing. Recent developments point to the emergence of norms that require the extension of territorial birthright citizenship in some cases and that limit discretion concerning naturalization thresholds. International law may come to protect an individual’s right to maintain multiple nationality. These and other elements of a new regime relating to citizenship practice are emerging through multiple channels of decentralized international lawmaking. The shift is also reflected in recent work of prominent political theorists, who are increasingly articulating a right to citizenship.
The new international law of citizenship has broad implications for the nature of the state. To the extent that an international right to citizenship status helps decouple citizenship from organic forms of community, it could be subversive of the communal solidarities on which state capacities may depend. This magnifies the importance of building capacity at the international level. The article charts the history of and suggests a future for the international law of citizenship.