The World Trade Organization (WTO) is one of the most judicialized dispute settlement systems in international politics. While a general appreciation has developed that the system has worked quite well, research has not paid sufficient attention to the weakest actors in the system. This paper addresses the puzzle of missing cases of least-developed countries initiating WTO dispute settlement procedures. It challenges the existing literature on developing countries in WTO dispute settlement which predominantly focuses on legal capacity and economic interests. The paper provides an argument that the small universe of ‘actionable cases’, the option of free riding and the assessment of the perceived opportunity costs related to other foreign policy priorities better explain the absence of cases. In addition (and somewhat counterintuitively), we argue that the absence of cases is not necessarily bad news and shows how the weakest actors can use the dispute settlement system in a ‘lighter version’ or in indirect ways. The argument is empirically assessed by conducting a case study on four West African cotton-producing countries (C4) and their involvement in dispute settlement.
Saturday, June 16, 2012
Friday, June 15, 2012
Orakhelashvili: Changing Jus Cogens Through State Practice?—The Case of the Prohibition of the Use of Force and its Exceptions
This chapter to the forthcoming Oxford Handbook on the Use of Force (OUP) addresses the intensively debated points regarding the role and effect of jus cogens in the area of the use of force when contrary State practice tends to contribute to consolidating exceptions to the prohibition of the use of force, or to validating violations of that prohibition. First, this contribution examines what State practice is, how it works, and what its limits are. Secondly, the peremptory status of the prohibition of the use of force gets substantiated. Thirdly, various claimed exceptions to the UN Charter-based prohibition of the use of force – and to its customary counterpart – are examined in the light of State practice that presumably supports the emergence and consolidation of those exceptions. It is shown how the jus cogens status of the prohibition of the use of force, together with other relevant factors, prevents the acceptance of those exceptions within the international legal system. NOTE: This chapter has been posted here with the editor's and publisher's permission and will be taken off once the Handbook is published
In June 2011 the International Council for Commercial Arbitration (ICCA) marked its fiftieth anniversary with a celebratory conference in Geneva, the birthplace of ICCA. This volume, ICCA Congress Series no. 16, comprises the proceedings of the conference, in which eminent arbitration scholars and practitioners assess the current state of arbitration – both international commercial arbitration and international investment arbitration – and what the future holds for arbitration and for ICCA.
In proceedings before the International Court of Justice (I.C.J.), a “counter-claim” is “an autonomous legal act” by the Respondent in a contentious case, “the object of which is to submit a new claim to the Court,” one that is “linked to the principal claim, in so far as, formulated as a ‘counter’ claim, it reacts to" the principal claim. A counter-claim is not a defense on the merits to the principal claim; while it is a reaction to that claim, it is pursuing objectives other than simply dismissal of the principal claim. Hence, the reason for allowing a counter-claim to be included as part of an existing case is not because it assists in disposition of the principal claim but, rather, to assist in the disposition of two autonomous claims. The I.C.J. Statute does not directly address the issue of the Respondent filing a counter-claim against the Applicant. Art. 80 of the Rules, however, provides that the Court may entertain such a counter-claim in certain circumstances, as a part of the incidental proceedings of an existing case.
Counter-claims featured somewhat in the early life of the Court (in 1950-52), but then disappeared for several decades; they have reemerged in several cases after 1997, such as Italy’s unsuccessful counter-claim filed in 2009 against Germany in Jurisdictional Immunities of the State. Renewed interest in the use of counter-claims may be due to a desire by Respondents to present to the Court a more balanced perspective of the conduct of the two States before it, because inclusion of the counter-claim may force both the Court and the other party to confront certain facts and legal arguments that otherwise would not feature in the case. From the Court’s perspective, allowing a counter-claim in the proper circumstances promotes the value of judicial economy; addressing the claim and counter-claim in a single proceeding may be more efficient than doing so in separate cases. At the same time, there are requirements that must be met before a counter-claim may be entertained, requirements designed to prevent a Respondent from using an unrelated counter-claim simply as a tactic for slowing down the disposition of principal claim and for detracting from a central focus on that claim.
This concluding chapter to Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press, forthcoming) provides an overview of what IL/IR scholarship has revealed about the making, interpretation, and enforcement of international law. In each area, we outline the distinctive theoretical, conceptual and empirical contributions that IL/IR has made as well as its lacaune and blindspots. We then turn to theory, and discuss the contributions that each of the classic IR theories has made to IL/IR scholarship, as well as the strengths and limitations of the recent turn to pragmatic, eclectic theoretical approaches found in problem-driven empirical research. Finally, we suggest ways to rebalance the asymmetrical terms of trade in theory between international law and international relations, and briefly outline a future research agenda for IL/IR scholarship.
Maurer: Public Policy Exception under the New York Convention: History, Interpretation, and Application
The Public Policy Exception under the New York Convention: History, Interpretation, and Application describes in detail the drafting history of the public policy exception of Art. V (2) (b) of the New York Convention in order to determine the purpose the signatory states wanted to achieve with this clause. The book also explains how this clause is applied by the courts in many economically relevant states, and especially in Brazil, Russia, India, and China. This is a book which is of importance for all internationally active companies as well as for lawyers and courts. The book aids lawyers and companies in drafting arbitration clauses and in enforcing foreign arbitral awards. Often, judgments will not be enforced abroad; this is especially true with respect to an enforcement of foreign judgments in the BRIC countries. Therefore, internationally active companies and their advisors need guidance if and where foreign arbitral awards in their favor will be enforced abroad.
Thursday, June 14, 2012
- Christa Tobler, Schiedsgerichte im Bilateralen Recht?
- Christoph A. Spenlé & Jan Skalski, Das unterschätzte Verfahren: Zur Funktion und Struktur der UNO-Staatenberichtsverfahren und Bedeutung des CEDAW-Verfahrens für die föderalistische Schweiz
- Christian Kölz, The Preclusive Effect of U.S. Class Action Judgments in Switzerland: Does a Judgment in an Opt-Out Class Action before a U.S. Court Preclude Absent Plaintiff Class Members from (Re)Litigating their Individual Claims in Switzerland?
- Beat Dold, Concepts and Practicalities of the Recognition of States
- Lucius Caflisch, La pratique suisse en matière de droit international public 2010
- Robert Kolb, Chronique de la jurisprudence de la Cour international de Justice en 2011
- Matthias Oesch, The Jurisprudence of WTO Dispute Resolution (2011)
Puig & Brown: The Secretary-General's Power to Refuse to Register a Request for Arbitration Under the ICSID Convention
The main purpose of this article is to assess the practice of ICSID in the process of registration of arbitration requests and to provide a practical review of the main case-related function of the Secretary-General. Until recently, Article 36(3) of the ICSID Convention had been relatively uncontroversial. However, some critics have argued that it is becoming more difficult to persuade the Secretary-General to register a request for arbitration than it is to persuade an arbitral tribunal to exercise jurisdiction over a claim, and have noted that this is “troubling, given that there is no appeal open to a putative claimant should the Secretary-General refuse to register a request for arbitration.” Others have harshly criticized the Centre for declining to refuse the registration of certain claims. In light of this debate, the Centre’s renewed emphasis on timeliness in the registration process and the adoption of the new Rule 41(5), it is appropriate to consider the purpose and operation of the Secretary-General’s screening power. This evaluative process is complex, given that the Centre publishes only limited information about its decisions to refuse to register requests for arbitration. However, in this article we have considered all the examples reported by ICSID staff where claims were found to be “manifestly outside the jurisdiction of the Centre”. Of the 13 occasions on which the Secretary-General has refused to register a request for arbitration, this article covers eight such instances, while excluding (at least) two known instances where the requesting parties apparently expected the refusal, so that they could set in motion another procedure for the settlement of the dispute.
Guieu: The Debate about a European Institutional Order among International Legal Scholars in the 1920s and its Legacy
The inter-war period is a forgotten moment in the debate about a European institutional order amongst legal scholars. Although the European Communities established in the 1950s did not derive directly from the institutional schemes of the 1920s, the earlier period played an important role in the building of a specifically European legal doctrine. The failure of the universalist League of Nations led a certain number of international jurists, particularly French ones, to support regional solutions as an alternative. A European legal framework was thus seen as a possible way of adapting international law to meet the goals of peace and stability.
- Shiri Krebs, Lifting the Veil of Secrecy: Judicial Review of Administrative Detentions in the Israeli Supreme Court
- Cristian DeFrancia, Enforcing the Nuclear Nonproliferation Regime: The Legality of Preventive Measures
- Lillian Aponte Miranda, The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and Peoples-Based Development
- Niels Petersen, Determining the domestic effect of international law through the prism of legitimacy
- Stephan W. Schill, Investitionsschutzrecht als Entwicklungsvölkerrecht
- Bertus de Villiers, Creating federal regions - minority protection versus sustainability
- Carlino Antpöhler, Emergenz der europäischen Wirtschaftsregierung. Das Six Pack als Zeichen supranationaler Leistungsfähigkeit
- Gefion Schuler, "National policy assessment" as a standard form of international organisations. The example of the OECD anti-bribery policy
Wednesday, June 13, 2012
- Michael Duttwiler, Authority, control and jurisdiction in the extraterritorial application on the European Convention on Human Rights
- Vladislava Stoyanova, Dancing on the borders of article 4: Human trafficking an dthe European Court of Human Rights in the Rantsev case
- Peter van Elsuwege, New challenges for pluralist adjudication after Lisbon: The protection of fundamental rights in a Ius Commune Europaeum
- Prateek Bhattacharya & Jayant Raghu Ram, Settling Trade Disputes: Butter, Not Guns
- Joel P Trachtman, The WTO, Legitimacy and Development
- Gabrielle Marceau & Mikella Hurley, Transparency and Public Participation in the WTO: A Report Card on WTO Transparency Mechanisms
- Jan Bohanes & Fernanda Garza, Going Beyond Stereotypes: Participation of Developing Countries in WTO Dispute Settlement
- Simon Lester, The Development of Standards of Appellate Review for Factual, Legal and Law Application Questions in WTO Dispute Settlement
- Sonia E. Rolland, Considering Development in the Implementation of Panel and Appellate Body Reports
- Arthur Daemmrich, Epistemic Contests and Legitimacy of the World Trade Organization: The Brazil – USA Cotton Dispute and Incremental Balancing of Global Interests
- Notes and Comments
- Yonov Frederick Agah, WTO Dispute Settlement Body Developments in 2010: An Analysis
- Claus D. Zimmermann, The Neglected Link Between the Legal Nature of WTO Rules, the Political Filtering of WTO Disputes, and the Absence of Retrospective WTO Remedies
- Forum: The Global Financial Crisis
- Christian Tietje, The International Financial Architecture as a Legal Order
- Christoph Ohler, The European Stability Mechanism: The Long Road to Financial Stability in the Euro Area
- Focus: The Arctic Challenge
- Kristin Bartenstein, Navigating the Arctic: The Canadian NORDREG, the International Polar Code and Regional Cooperation
- Jonas Attenhofer, Navigating Along Precedence: How Arctic Sovereignty Melts with the Ice
- Nele Matz-Lück, Continental Shelf Delimitation and Delineation in the Arctic: Current Developments
- Richard Barnes, International Regulation of Fisheries Management in Arctic Waters
- Nigel Bankes, Indigenous Land and Resource Rights in the Jurisprudence of the Inter-American Court of Human Rights: Comparisons with the Draft Nordic Saami Convention
- David L. VanderZwaag, The Arctic Council at 15 Years: Edging Forward in a Sea of Governance Challenges
- Tim Stephens, The Arctic and Antarctic Regimes and the Limits of Polar Comparativism
- Adalheidur Jóhannsdóttir, The European Union and the Arctic: Could Iceland's Accession to the EU Change the EU's Influence in the Arctic?
- General Articles
- Emmanuel Voyiakis, International Law, Interpretative Fidelity and the Hermeneutics of Hans-Georg Gadamer
- Bjørn Kunoy, Conservation and Management of Shared Fish Stocks and the Applicable International Trade Regime
- Rosemary Rayfuse, Differentiating the Common? The Responsibilities and Obligations of States Sponsoring Deep Seabed Mining Activities in the Area
- Ralf Müller-Terpitz, Genetic Testing of Embryos in vitro – Legal Considerations with Regard to the Status of Early Human Embryos in European Law
- Kasey L. McCall-Smith, Reservations and the Determinative Function of the Human Rights Treaty Bodies
- Christoph J. Schewe & Azar Aliyev, The Customs Union and the Common Economic Space of the Eurasian Economic Community: Eurasian Counterpart to the EU or Russian Domination?
- German Practice
- Susanne Wasum-Rainer & Christophe Eick, The UN Security Council and International Law in 2011
- Peter Wittig, Climate Change and International Peace and Security: The Open Debate in the United Nations Security Council on 20 July 2011
- Thomas Giegerich, The Federal Constitutional Court's Deference to and Boost for Parliament in Euro Crisis Management
- Jan Oliva, Legal Persons from EU Member States and their Entitlement to Fundamental Rights under the German Basic Law
- Björn Elberling, German Practice Regarding Enforcement of Sentences Passed by International Criminal Courts and Tribunals
- Patrick Kroker, Universal Jurisdiction in Germany: The Trial of Onesphore R. Before the Higher Regional Court of Frankfurt
- Tobias Thienel, Torture Abroad, Consular Assistance and the Admissibility of Evidence
- Oliver Daum, Juridicial Virgin Soil and the Well-fortified Democracy – The Annual Report on the Protection of the Constitution under International Legal Scrutiny
- Felix Machts, Legal Protection of Biotechnological Inventions – Patentability of Extraction of Precursor Cells from Human Embryonic Stem Cells (ECJ)
- Patrick Braasch, The European Convention on Human Rights' Limitations in the Dismissal of Non-clergy Church Employees
- Sara Jötten & Jule Siegfried, The German Strike Ban for Public Officials in Light of the Jurisprudence of the European Court of Human Rights: The Judgments of the Administrative Court of Düsseldorf of December 2010 and the Administrative Court of Kassel of July 2011
- Stephanie Schlickewei, Denial of Individual Right to Compensation to Victims of World War II Massacre in Light of the ECHR: Sfountouris and Others v. Germany
- Claudia Schubert, Whistle-Blowing after Heinisch v. Germany: Much Ado About Nothing?
- Antje Siering, Freedom of Expression in a National Context: The Case of Hoffer and Annen v. Germany
- Philipp Tamme, No Residence Permit after Marriage in Denmark: The Federal Administrative Court in Breach of EU Law?
In May 2012, Liechtenstein became the first State to ratify amendments to the Rome Statute of the International Criminal Court (ICC) that seek to activate the Court’s jurisdiction over the crime of aggression. The amendments, which were adopted by consensus at the ICC Review Conference that met in Kampala, Uganda, in 2010, establish definitions for “act of aggression” and “crime of aggression,” and provide the Court with jurisdiction even in the absence of a referral from the Security Council. At the same time, the States Parties decided that the ICC’s jurisdiction over this crime will not become operative until at least thirty States ratify the amendments and until there is a further decision by the States Parties sometime after January 1, 2017. Even then, the ICC’s jurisdiction will be limited over this crime: there are exceptions available for States Parties who wish to avoid exposure to the Court’s jurisdiction and the jurisdiction will not extend to States that are not Parties to the Rome Statute.
Despite the progress at Kampala, considerable uncertainties and ambiguities exist concerning the process for activating the jurisdiction, the manner in which the jurisdiction operates once it is activated, its institutional effects on the Security Council and the ICC itself, and its long-term implications for the jus ad bellum. As such, those interested in the effective functioning of the ICC’s jurisdiction over the crime of aggression, and in the efficacy of international norms on the use of force generally, should not view Kampala as the final word on the crime of aggression, but as an opportunity to continue to grapple with the very real and very challenging issues that still remain.
Tuesday, June 12, 2012
This chapter examines the most advisable scope of ICC authority in contrast to the traditional dispute mechanisms encountered in Afghanistan [in the context of a weak central authority facing resurgent Taliban influences] and Uganda [in the context of the Lord’s Resistance Army]. Sustainable peace in a situation state may rely on the development of authoritative local actors capable of administering justice/reconciliation grounded in sociological legitimacy. Formalized investigations and prosecutions are a profoundly important dimension of the larger effort to restore the rule of law, and the complementarity regime focuses exclusively on these formal processes in allocating power between the ICC and situation states. From the perspective of victims and community leaders, the external interference of the ICC is in itself a controversial and complex aspect of “justice.” The experience of the Court’s first decade reveals beyond any doubt that its institutional role will be hotly debated by families, communities, and victims most affected by conflicts. Indeed, the balance between prosecutions, reintegration of particular perpetrators, forgiveness, reparations, truth-telling, and apology is itself most delicate process because the fundamental nature of the social contract between the individual and the state is in flux, just as the nature of the relationship between the state and the supranational Court is evolving. To ameliorate what will be a recurring problem as it begins its second decade of operation, the ICC needs to develop a consistent and analytically defensible framework for understanding community based processes in light of the “interests of justice” analysis permitted under Article 53.
Conference: 10th Anniversary of the International Criminal Court: Achievements to Date and Prospects for the Future
This book surveys and analyses the nature of FET as a “new” rule of customary law that is non-contingent and absolute in that it protects a given entity irrespective of the treatment which may be accorded to others. The author explores whether the often-heard criticism of the international investment protection regime is justified. The overarching questions are: Does the system`s mixture of private arbitration and public law indeed undermine accountability and independence in judicial decision-making? Does it trump principles of legislative supremacy and, in the end, alter a central tenet of representative democracy? Among the far-reaching aspects of the subject covered are the following: the relationship of FET to human rights and other standards of protection; assumptions about reciprocity and mutuality; the “treatification” of foreign investment law; the special significance of the Energy Charter Treaty; ICSID as a self-contained system; identifying limitations on the parties’ freedom of choice; the protection of legitimate expectations; the relevance of investors’ conduct in FET proceedings; due process in administrative decision-making; and denial of judicial justice.
Relevant case law is examined, and there are detailed descriptions of the main dispute resolution forums – ICSID arbitration especially, but with due attention to the new UNCITRAL, the ICC Rules, the SCC and the LCIA Rules. This is a significant contribution to the debate over a controversial concept and its normative underpinnings. By analysing how states are bound by investment treaty obligations and how arbitrators deal with them, this book explains how the standards are continually shaped and scrutinized to respond to the needs of the actors engaged in an investment relationship. Although it is of great interest for legal academics and jurists, it is its practical analysis that will be most welcomed by arbitrators, corporate counsel, and government regulatory officials.
von Schorlemer & Stoll: The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Explanatory Notes
The 2005 UNESCO Convention on Cultural Diversity is a landmark agreement in modern international law of culture. It reflects the diverse and pluralist understanding of culture, as well as its growing commercial dimension. Thirty diplomats, practitioners and academics explain and assess this important agreement in a commentary style. Article by article, the evolution, concepts, contents and implications of the Convention are analysed in depth and are complemented by valuable recommendations for implementation. In an unprecedented way, the book draws on the first-hand insights of negotiators and on the experience of practitioners in implementation, including international cooperation, and combines this with a good deal of critical academic reflection. It is a valuable guide for those who deal with the Convention and its implementation in governments, diplomacy, international organizations, cultural institutions and non-governmental organizations and will also serve as an important resource for academic work in such fields as international law and international relations.
- Elihu Lauterpacht, Foreword
- Andrew Sanger & Rumiana Yotova, Editors’ Introduction: ‘Continuity and Change’
- Christopher Greenwood, Some Challenges of International Litigation
- Daniel Bethlehem, The Secret Life of International Law
- Philippe Sands, Twin Peaks: The Hersch Lauterpacht Nuremberg Speeches
- Hersch Lauterpacht, Draft Nuremberg Speeches
- Lorand Bartels, Withdrawing Provisional Application of Treaties: Has the EU Made a Mistake?
- Filippo Fontanelli, The Invocation of the Exception of Non-Performance, A Case-Study on the Role and Application of General Principles of International Law of Contractual Origin
- Case Analysis
- Robin Churchill, The Bangladesh/Myanmar Case: Continuity and Novelty in the Law of Maritime Boundary Delimitation
- Kimberley N. Trapp & Alex Mills, Smooth Runs the Water Where the Brook Is Deep: The Obscured Complexities of Germany v Italy
- Francesco Messineo, Maps Of Ephemeral Empires: The ICJ and the Macedonian Name Dispute
- Thomas R. Liefländer, The Lubanga Judgment of the ICC: More Than Just the First Step?
- Anna Cowan, A New Watershed? Re-Evaluating Banković in Light of Al-Skeini
Monday, June 11, 2012
- Interview with David Kilcullen
- Claudia Hofmann & Ulrich Schneckener, Engaging non-state armed actors in state- and peace-building: options and strategies
- Naz K. Modirzadeh, Dustin A. Lewis & Claude Bruderlein, Humanitarian engagement under counter-terrorism: a conflict of norms and the emerging policy landscape
- Sophie Rondeau, Participation of armed groups in the development of the law applicable to armed conflicts
- Pascal Bongard & Jonathan Somer, Monitoring armed non-state actor compliance with humanitarian norms: a look at international mechanisms and the Geneva Call Deed of Commitment
- Françoise Perret & François Bugnion, Between insurgents and government: the International Committee of the Red Cross's action in the Algerian War (1954–1962)
- Deborah Casalin, Taking prisoners: reviewing the international humanitarian law grounds for deprivation of liberty by armed opposition groups
- David Tuck, Detention by armed groups: overcoming challenges to humanitarian action
- Ron Dudai, Closing the gap: symbolic reparations and armed groups
- Selected Article on International Humanitarian Law
- John Borrie & Maya Brehm, Enhancing civilian protection from use of explosive weapons in populated areas: building a policy and research agenda
- Comments and Opinions
- Jelena Pejic, The European Court of Human Rights’ Al-Jedda judgment: the oversight of international humanitarian law
- Robert O. Keohane, Twenty Years of Institutional Liberalism
- Tudor Onea, Putting the ‘Classical’ in Neoclassical Realism: Neoclassical Realist Theories and US Expansion in the Post-Cold War
- Faruk Yalvaç, Strategic Depth or Hegemonic Depth? A Critical Realist Analysis of Turkey’s Position in the World System
- B.K. Greener, International Policing and International Relations
- Jacob L. Stump & Priya Dixit, Toward a Completely Constructivist Critical Terrorism Studies
- Shannon Brincat, On the Methods of Critical Theory: Advancing the Project of Emancipation beyond the Early Frankfurt School
- Elliott Green, On the Size and Shape of African States
- Joshua D. Kertzer & Kathleen M. McGraw, Folk Realism: Testing the Microfoundations of Realism in Ordinary Citizens
- Mark J.C. Crescenzi, Jacob D. Kathman, Katja B. Kleinberg & Reed M. Wood, Reliability, Reputation, and Alliance Formation
- Anthony McGann & Wayne Sandholtz, Patterns of Death Penalty Abolition, 1960–2005: Domestic and International Factors
- Inanna Hamati-Ataya, Beyond (Post)Positivism: The Missed Promises of Systemic Pragmatism
- Clayton L. Thyne, Information, Commitment, and Intra-War Bargaining: The Effect of Governmental Constraints on Civil War Duration
- Richard Saull, Rethinking Hegemony: Uneven Development, Historical Blocs, and the World Economic Crisis
- Michael D. Tyburski, The Resource Curse Reversed? Remittances and Corruption in Mexico
- Philip Arena & Scott Wolford, Arms, Intelligence, and War
- Garry Rodan & Caroline Hughes, Ideological Coalitions and the International Promotion of Social Accountability: The Philippines and Cambodia Compared
- Elena V. McLean, Donors’ Preferences and Agent Choice: Delegation of European Development Aid
- Isa Camyar, Party Politics and International Trade: Mainstream Parties, Niche Parties, and Trade Openness
- Yury V. Bosin, Supporting Democracy in the Former Soviet Union: Why the Impact of US Assistance Has Been Below Expectations
- Jong Hee Park, What Determines the Specificity of Subsidies?
- Jason Sorens & William Ruger, Does Foreign Investment Really Reduce Repression?
Arato: Constitutional Transformation in the ECtHR: Strasbourg's Expansive Recourse to External Rules of International Law
The European Court of Human Rights is a constituted judicial body, established by international treaty among the member States of the Council of Europe. Yet it can hardly be described as a static creature of the Parties. The Court has undergone dramatic constitutional change since its inception, resulting in an organization significantly more autonomous, independent, and robust in its maturity. Certain important changes have been achieved through formal amendment by the Parties. At the same time, however, the constitution of the ECtHR has undergone a quieter, informal kind of development – through the Court’s own practice in the discharge of its normal functions. Change of this latter type may be called constitutional transformation, by contrast to formal constitutional amendment. This paper is about the transformative effect of the Court’s approach to the interpretation of its constituent instrument, the ECHR. More specifically, the focus is on its approach to one particular technique of interpretation, codified at VCLT 31(3)(c) (providing for the consideration of external sources of international law). On the one hand, as is often recognized, the Court relies on the technique to ground a dramatic and evolutive mode of treaty interpretation – expanding the substantive rights of the Convention in light of sources external to it. Yet on the other hand, I want to suggest, the Court gives 31(3)(c) itself an astonishingly broad construction, to justify considering an extraordinary array of external sources – thereby expanding its own material competence to develop the Convention on the basis of developments outside of the Convention. This latter dimension of the Court’s interpretive approach, I argue, has brought about a genuine constitutional transformation.
This Conference is the Society’s twentieth annual conference, and provides an opportunity to reflect on the last twenty years in the development of international law, but equally important to look ahead to the emerging issues and to speculate on what the next twenty years will bring for international law and its practice and teaching. The relentless progression of climate change, the political revolutions and uprisings in the Middle East, the relationship between the growing economic and political power of countries outside Europe and North America and their approach to international law and diplomacy, the sharpening of debates over food security, the inability of the United Nations to reform its institutional arrangements relating to international peace and security, the fragility of the international financial system and popular movements challenging its morality and legitimacy, the resurgence of fundamentalisms, and the continuing disgrace of widespread poverty, among many others.
Sunday, June 10, 2012
Written for a symposium on truth and reconciliation in South Korea, this article offers lessons from the Cambodian experience with truth and reconciliation. Cambodia might be a counter-intuitive case study given that it has never convened a formal truth and reconciliation commission, yet offers important lessons for South Korea and other states seeking to meet the needs of survivors of abusive regimes. We present two central claims drawn from the Cambodian experience of truth and reconciliation. First, local civil society should be engaged as a central player in truth and reconciliation initiatives. Second, the Cambodian example offers lessons about the role of institutional sequencing in transitional justice efforts, particularly the sometimes unexpected ways in which more traditional institutions create political space for more innovative and effective mechanisms.