- Patrice C. McMahon & Jennifer L. Miller, From Adjudication to Aftermath: Assessing the ICTY’s Goals beyond Prosecution
- David L. Richards & K. Chad Clay, An Umbrella With Holes: Respect for Non-Derogable Human Rights During Declared States of Emergency, 1996–2004
- Jodi Finkel, Explaining the Failure of Mexico’s National Commission of Human Rights (Ombudsman’s Office) after Democratization: Elections, Incentives, and Unaccountability in the Mexican Senate
Saturday, November 24, 2012
Friday, November 23, 2012
Reinold: Sovereignty and the Responsibility to Protect: The Power of Norms and the Norms of the Powerful
This book explores how the bedrock institution of today’s global order – sovereignty – is undergoing transformation as a result of complex interactions between power and norms, between politics and international law.
This book analyses a series of controversial military interventions into the internal affairs of "irresponsible sovereigns" and discusses their consequences for the rules on the use of force and the principle of sovereign equality. Featuring case studies on Kosovo, Darfur and Afghanistan, It shows that frames from one discourse (for example the debate over the responsibility to protect) have been imported into other discourses (on counter-terrorism and nuclear non-proliferation) in an attempt to legitimize a bold challenge to the global legal order. Although the ‘demise’ of sovereignty is widely debated, this book instead seeks to ‘deconstruct’ sovereignty by explaining how this institution has been reconstituted by global powers whose hegemonic law-making activities have popularized the notion of sovereignty as responsibility.
This book chapter considers the development impact of the decision to subject the international intellectual property standards established by the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) to the mandatory dispute resolution process of the World Trade Organization (WTO). This decision has had two important consequences for developing countries. First, it has contributed to the creation of a “pro intellectual property climate” in which countries have foregone flexibilities to which they would otherwise be entitled. Second, it has also led adjudicators to miss the unique need for internal balancing associated with intellectual property, resulting in overly restrictive interpretation of TRIPS flexibilities. For the least-developed countries (LDCs), the loss of flexibilities is particularly problematic.
This chapter seeks to revive the special and differential provisions available to developing and LDCs in WTO dispute resolution to counter this loss of flexibilities. Specifically, it recommends using a little-known provision of the Dispute Settlement Understanding, Article 24.1, to benefit LDCs in TRIPS disputes. The chapter argues that Article 24.1 could and should be used in TRIPS disputes to provide LDCs with greater flexibility in implementing their obligations under the treaty, including through a more lenient standard of review, shifting the burden of proof with respect to exceptions and limitations, and requiring injury as part of a prima facie case against an LDC.
- Marike R.P. Paulsson, The New York Convention: Can We Finally Move Forward from 1958 to 1953?
- Amy Sander, Investment Insurance and Investment Arbitration: The Position of the Third Party
- Charles Poncet, The Independence of the Court of Arbitration for Sport
- Ugo Draetta, What Does "Ethics in Arbitration" Really Mean?
Thursday, November 22, 2012
- Special Issue: New Directions in the Sociology of Human Rights
- Patricia Hynes, Michele Lamb, Damien Short & Matthew Waites, Foreword
- Lydia Morris, Understanding torture: the strengths and the limits of social theory
- Haifa Rashed & Damien Short, Genocide and settler colonialism: can a Lemkin-inspired genocide perspective aid our understanding of the Palestinian situation?
- Irene Bruna Seu, ‘In countries like that…’ moral boundaries and implicatory denial in response to human rights appeals
- Ross McGarry, Gabe Mythen & Sandra Walklate, The soldier, human rights and the military covenant: a permissible state of exception?
- Tracey Skillington, Climate change and the human rights challenge: extending justice beyond the borders of the nation state
- Tanya Golash-Boza & Cecilia Menjívar, Causes and consequences of international migration: sociological evidence for the right to mobility
- Nicholas Connolly, Corporate social responsibility: a duplicitous distraction?
- Samantha Punch, Ian McIntosh & Ruth Emond, ‘You have a right to be nourished and fed, but do I have a right to make sure you eat your food?’: children's rights and food practices in residential care
Legal Tradition in a Diverse World
The Cambridge Journal of International and Comparative Law (CJICL) invites abstract submissions for participation in its second annual conference, to be held on 18 and 19 May 2013 at the University of Cambridge.
The 2013 conference will explore how legal tradition influences lawyers and the law, in both international and domestic contexts. Law does not develop in a vacuum; it is shaped by the intellectual, cultural and linguistic backgrounds of those who create and administer it. In a world where legal systems increasingly interact, the enduring power of legal tradition necessitates a constant recalibration of theoretical and practical tools to deal with diversity.
Judge Abdulqawi A. Yusuf of the International Court of Justice will deliver the keynote address. Other highlights include a keynote debate between Professor Alain Pellet (Paris Ouest, Nanterre-La Défense) and Professor James Crawford (Cambridge), moderated by Professor Catherine Redgwell (UCL), on continental and Anglo-Saxon traditions in pleading before international courts; and a guest lecture by Professor H. Patrick Glenn (McGill), recipient of the Grand Prize of the International Academy of Comparative Law, on ‘The State as a Legal Tradition’.
The CJICL welcomes a wide variety of proposals in the field of international and comparative law, including empirical approaches, theoretical discussions and perspectives from practice. Examples of panels include:
- Dealing with diversity in the global practice of law, including: asset recovery in foreign jurisdictions; competing views on rules of procedure and evidence in international arbitration; the common law/civil law divide in international criminal trials; proliferation of international and regional jurisdictions.
- National legal traditions in an international context, including: implementation of international law in diverse domestic contexts; legal tradition and the teaching of law; extraterritorial application of domestic law; transboundary judicial interaction.
- Legal traditions and human rights, including: religious rights and the freedom of expression; the right to democracy and the Arab spring; traditional practices and universal human rights; jurisdiction, immunities and extradition.
- International law as a tradition, including: defining an international rule of law; local and regional custom; general principles of law in a diverse world; an international legal lexicon?
- Untraditional approaches to law, including: wordfare in legal scholarship; critical approaches to international law; resisting legal tradition; women and the law.
- The creation of legal tradition, including: the rule of law in post-conflict societies; transplanting legal tradition; non-state actors and the making of legal tradition; judicial activism in international and domestic courts.
Abstract submissions must be no longer than 300 words in length and should be accompanied by a brief biography or CV. Please submit your documents via firstname.lastname@example.org.
The closing date for submissions is 15 January 2013. Successful applicants will be informed by 1 February 2013 and must submit their papers by 1 May 2013. Conference papers should be no longer than 10,000 words, including footnotes.
Selected papers will be considered for publication in the forthcoming conference issue of the Cambridge Journal of International and Comparative Law.
General registration for the conference will open in early February 2013 on our website, www.cjicl.org.uk.
Wednesday, November 21, 2012
This Article presents the first and only analysis of Article 19 of the International Covenant on Civil and Political Rights as it applies to new technologies and uses this analysis to develop the foundation for an “international law of the Internet.” Although Article 19 does not guarantee a right to the “Internet” per se, it explicitly protects the technologies of connection and access to information, and it limits states’ ability to burden content originating abroad. The principles derived from Article 19 provide an important normative reorientation on individual rights for both domestic and international Internet governance debates.
Article 19’s guarantee of a right to the technologies of connection also fills a critical gap in human rights law. Protecting technology allows advocates to intervene in discussions about technological design that affect, but do not themselves violate, international human rights law. Failure to attend to these choices — to weigh in, ahead of time, on the human rights implications of software code, architecture design, and technological standards — can have significant consequences for human rights that may not be easily undone after the fact.
The Article also argues that technology companies are key partners in implementing Article 19. First, Article 19 directly binds these actors in some instances. Previously undiscovered portions of Article 19’s drafting history demonstrate that it does not have a state action requirement for dominant private actors. Second, as a pragmatic matter, technology companies can play an important role in enforcing Article 19 because of their central involvement in technology development and standard setting. Decisions about technology can make it easier or harder for states to violate international law, and technology companies should embed “human rights defaults” into their technology by designing it in ways that make it harder for states to violate international human rights.
Brandes & Zemach: Controlling the Execution of a Security Council Mandate to Use Force: Does the Council Need a Lawyer?
The NATO military intervention in Libya pursuant to Security Council Resolution 1973 triggered a severe crisis of trust among permanent members of the Security Council, with Russia and China adopting the position of many international lawyers that the intervention grossly exceeded the mandate provided by the resolution. This crisis of trust significantly hinders the function of the Security Council as the primary guarantor of international peace and security, as exemplified by its failure to effectively address the atrocities committed against the civilian population in Syria.
The present article describes the lack of Security Council control over the implementation of its resolutions authorizing the use of force, which underlies the current crisis. It argues that the means of enhancing such control advocated in the current legal literature are ill-suited to promote consonance between the aims of Security Council authorizations to use force and measures taken by states acting upon such authorization. The article proposes a reform in the practice of the Security Council that would promote such consonance, relieving the crisis of trust that currently encumbers the functioning of the collective security mechanism.
According to the proposed mechanism, a permanent UN committee of legal experts would be established to monitor the compatibility of military operations undertaken by a state pursuant to a Security Council authorization to use force with the terms of the authorization. A monitoring role of this type would require the committee, an intermediary body between the Security Council and the operating states, to interpret and clarify the authorization provided by the Council. The committee's interpretation of the mandate and its views regarding the operational consequences that such construction entails would become binding upon the operating states, unless the Security Council explicitly decides otherwise.
For reasons of political feasibility, the proposed reform is designed to minimize political costs for both permanent members of the Security Council and for other states acting pursuant to a Security Council authorization to use force. The reform would reduce significantly the ability of states to rely on a Security Council resolution authorizing the use of force to conduct military operations that depart from the terms of such authorization, and at the same time it would ensure that ultimate control over the collective security mechanism remains in the hands of the Security Council.
International investment law has received increasing attention due to the proliferation of investment treaties and the number of arbitral awards made thereunder. At the end of 2011, there were 450 known investment cases that have been settled or are pending. Yet, there are many core questions that remain to be authoritatively answered. Although they are faced with similar problems, arbitral tribunals often adopt diverging solutions to investment disputes. This paper considers the nature of the divergences in investment treaty jurisprudence and the role that could potentially be played by the International Law Commission (ILC) in contributing to the coherent development of international investment law. The paper argues that some areas of international investment law are more appropriate for attention by the ILC than others. It draws a distinction between those aspects of international investment that only have a basis in treaty law and those aspects of international investment law that are underpinned by common standards stemming from customary international law or general principles of law. The paper argues that we cannot necessarily expect the convergence of jurisprudence in the context of treaty provisions that have been specifically negotiated by the parties, as these provisions must be interpreted on a case-by-case basis. This means that topics like the MFN clause are less suitable for codification, as the meaning of these provisions will often depend on the particular context of the treaty and the precise intentions of the parties. In contrast, there is a stronger case for the codification of international investment law where common standards exist. The paper therefore considers the formation and development of customary international law in relation to investment protection. It argues that whilst investment treaty tribunals have struggled with the identification of customary international law in this area, the ILC could play a central role in clarifying the state of the relevant rules and principles, in furtherance of its core mandate of promoting the progressive development and codification of international law.
The date of 17 July 1998, the day of the adoption of the Rome Statute of the International Criminal Court, will always be marked as one of the major events in the history of international law of the 20th Century. Entered into force on July 1st 2002, the Statute paved the way for the establishment of the first permanent criminal Court in human history. Today, ten years after its entry into force, the Statute has been ratified or acceded by 121 States, additional ratifications or accessions being foreseen in the near future.
The First Review Conference held in Kampala from 31 May to 11 June 2010 concluded its work by adopting the two first amendments to the Rome Statute: the first one relating to the list of war crimes falling within the jurisdiction of the Court in case of armed conflict not of an international character (the so-called “Belgian Amendment”); and the second, permitting to trigger the jurisdiction of the Court for the crime of aggression in the following years.
Seizing the opportunity of the celebration of the tenth anniversary of the entry into force of the Rome Statute, the Belgian Interdepartmental Commission for Humanitarian Law, established in 1987 with the support of the ICRC, has taken the initiative of organizing an international study day in Brussels, on June 5th 2012, entirely dedicated to the two first amendments to the Rome Statute.
This book presents the fruitful results of the works, thoughts and remarks displayed during this event by an impressive gathering of some of the most authorised international experts in the field.
- Articles on Climate Action Beyond the UNFCCC
- Remi Moncel & Harro van Asselt, All Hands on Deck! Mobilizing Climate Change Action beyond the UNFCCC
- Lutz Weischer, Jennifer Morgan & Milap Patel, Climate Clubs: Can Small Groups of Countries make a Big Difference in Addressing Climate Change?
- Kati Kulovesi, Addressing Sectoral Emissions outside the United Nations Framework Convention on Climate Change: What Roles for Multilateralism, Minilateralism and Unilateralism?
- Edward Cameron & Marc Limon, Restoring the Climate by Realizing Rights: The Role of the International Human Rights System
- Shirley V. Scott, The Securitization of Climate Change in World Politics: How Close have We Come and would Full Securitization Enhance the Efficacy of Global Climate Change Policy?
- Durwood Zaelke, Stephen O. Andersen & Nathan Borgford-Parnell, Strengthening Ambition for Climate Mitigation: The Role of the Montreal Protocol in Reducing Short-lived Climate Pollutants
- General Articles
- Rakhyun E. Kim, Is a New Multilateral Environmental Agreement on Ocean Acidification Necessary?
- Monika Ambrus, The Precautionary Principle and a Fair Allocation of the Burden of Proof in International Environmental Law
- Thomas Deleuil, The Common but Differentiated Responsibilities Principle: Changes in Continuity after the Durban Conference of the Parties
- Andreas Kotsakis, The Regulation of the Technical, Environmental and Health Aspects of Current Exploratory Shale Gas Extraction in the United Kingdom: Initial Lessons for the Future of European Union Energy Policy
Tuesday, November 20, 2012
Despite the rejection of the EU Constitutional Treaty eventually leading to the adoption of the Lisbon Treaty, the debates concerning the European Union’s constitutional framework continue. This book builds on the discourse in European Union constitutionalism in order to offer a novel analysis of the EU’s constitutional developments.
Giuseppe Martinico sets out a unique account of EU constitutionalism which argues that the EU legal order is a complex entity which shares some features with natural systems. The book is soundly anchored in the theory and methodology of legal science and based on a deep knowledge of judicial practices. The author contends that Europe is still suffering from the failure of the Constitutional Treaty and is practicing the new institutional equilibrium afforded by the coming into force of the Reform Treaty. The book goes on to explore the methodological implications of such constitutional complexity for the study of EU law.
- Marco Parriciatu & Francesco Sindico, Contours of an Indigenous Peoples’ Right to Water in Latin America under International Law
- Khanyisela Moyo, Feminism, Postcolonial Legal Theory and Transitional Justice: A Critique of Current Trends
- Daniel Aguirre & Irene Pietropaoli, Human Rights Protection the ASEAN Way: Non-Intervention and the Newest Regional Human Rights System
- Amos O. Enabulele & Anthony Osaro Ewere, Can the Economic Community of West African States Community Court of Justice Enforce the African Charter Replicas of the Non-Justiciable Chapter II Human Rights Provisions of the Nigerian Constitution against Nigeria?
- Syméon Karagiannis, Le droit à la santé dans certains textes internationaux et constitutionnels : entre généreuse utopie et mesquin pragmatisme?
- Walid Ben Hamida, Les principes d’UNIDROIT et l’arbitrage transnational : L’expansion des principes d’UNIDROIT aux arbitrages opposant des États ou des organisations internationales à des personnes privées
- Anne-Marie Thévenot-Werner, L’examen périodique universel du Conseil des droits de l’homme des Nations Unies au regard du droit international - Entre politisation et normativité
- Olivier Dubos, Juridictions américaines et juridictions françaises face à l’article 33 de la Convention de Montréal : un dialogue de sourds ?
- Daniel Rietiker, Entre sécurité et protection de l’individu : la Convention sur les armes à sous-munitions comme dernier exemple d’un nouveau type de traité – et un modèle pour l’avenir ?
Monday, November 19, 2012
A paper presented at the Harvard International Law Workshop on the rise and fall of the idea of "international man" as it emerged in the inter-war as both a concrete reality and a sort of figurehead for liberal internationalism. The paper reconstructs a stylized portrait of "international man" as the model cosmopolitan civil servant of the League of Nations, points out some of the contradictions inherent in the model, contrasts it with the reality of the men who dominated the League and, finally, draws on a number of portraits of actual "international men" of the era to see how they navigated some of the challenges of internationalism. The paper concludes with a few thoughts on what might be the legitimacy of international technocrats in a world of states.
La biotecnología constituye uno de los procesos tecnológicos más destacados de los últimos años, siendo abordado por una multiplicidad de acuerdos internacionales que difieren principalmente en la racionalidad que guía la regulación.
Esta descoordinación normativa se materializa en problemas jurídicos transversales a diferentes regímenes internacionales (Ambiental, Económico, Derechos Humanos, Seguridad Alimentaria y Propiedad Intelectual) y es definida como la consecuencia jurídica de un fenómeno político que urge el diseño de propuestas innovadoras.
La presente obra desarrolla una respuesta jurídica clara a estos problemas legales; una respuesta que combina los clásicos recursos del Derecho internacional, con los modernos instrumentos conceptuales que brinda la teoría de relaciones internacionales. Propone un mecanismo que facilita la solución integral de las controversias transversales en materia de biotecnología e identifica en la función judicial internacional, el espacio donde conjugar eficientemente los instrumentos desarrollados en el texto.
The jurisprudential dimensions of treating custom as law have been puzzling at least since the time of Bentham and Austin. If law emanates from the sovereign, and consists of commands backed by threats from the sovereign, then customary law seems scarcely law at all. Or so Bentham and Austin, each in his own way, believed. But if, in a post-Hart jurisprudential world, we can recognize that norms can be internalized by judges and other officials even if they arise from the bottom up rather than from the top down, then a new puzzle emerges. In this modern jurisprudential world, the lawness of custom can easily be explained, but custom then appears simply to be one of many forms of law, occupying no distinct juridical space. The question whether and when to treat custom as law, therefore, is no different from the question whether and when one jurisdiction treats another jurisdiction’s norms as law, and whether and when to treat some particular source as law. These are important and sometimes difficult issues, but they are more continuous with the routine questions of legal sources and legal authority than the traditional treatments of custom have assumed.
The New Zealand Yearbook of International Law, launched in June 2004, is an annual, internationally refereed publication intended to stand as a reference point for legal materials and critical commentary on issues of public international law. The Yearbook serves as a valuable tool in the determination of trends, state practice and policies in the development of international law in New Zealand, the Pacific region, the Southern Ocean and Antarctica and to generate scholarship in those fields. In this regard the Yearbook contains an annual ‘Year-in-Review’ of developments in international law of particular interest to New Zealand as well as dedicated sections to the South Pacific and to Antarctica.
The Editor of the 2012 Yearbook is Natalie Baird (University of Canterbury, NZ) (Natalie.Baird@canterbury.ac.nz) and Angela Woodward (Programme Director, VERTIC) is the Associate Editor. The Editors are advised by members of the Advisory Board who are leading New Zealand - based and international academics and practitioners within the field of international law.
The Editors call for both short notes and commentaries, and longer in-depth articles, for publication in the 2012 edition of the Yearbook (volume 10). Notes and commentaries should be between 3,000 – 7,000 words (including footnotes). Articles may be from 8,000 to 15,000 words (including footnotes).
The Editors seek contributions on any issue of public international law. The Editors are particularly interested in receiving submissions that are relevant to New Zealand, Australasia, the Pacific, the Southern Ocean and Antarctica.
The closing date for submissions is 1 May 2013.
Submissions should be provided in English, using MSWord-compatible word processing software, and delivered by email to the General Editor at email@example.com . Contributions must be original unpublished works and submission of contributions will be held to imply this. Manuscripts must be word-processed and in compliance with the New Zealand Law Style Guide (2nd edition). The Guide is available online at http://www.lawfoundation.org.nz/style-guide/index.html.
This paper surveys and analyses the case law of United Kingdom courts on questions of personality and immunity of international organizations, as well as on the question of liability of members for the acts of the organization, focusing in particular on the various cases surrounding the collapse of the International Tin Council in the 1980s.
Sunday, November 18, 2012
de Brabandere: The Impact of ‘Supranationalism’ on State Sovereignty from the Perspective of the Legitimacy of International Organisations
In view of the proliferation of international organizations in the past century, it has become trite to claim that, especially through the creation of regional and supranational organizations aimed at integration rather than cooperation, State sovereignty is close to becoming an empty box. The rise of international organizations during the last century is without doubt one of the most important developments international law has witnessed. It is however doubtful that this evolution in and of itself has any bearing on the current traditional concept of state sovereignty.
This paper argues that instead of viewing regionalism and supranationalism as implying ipso facto a threat to state sovereignty, the form of the legitimacy of international organizations is determinant for the impact of international organization on the sovereignty of states. The question of the legitimacy of international organizations and the alleged threat that supranationalism and regionalism poses to the current conception of state sovereignty is of course closely intertwined with the type of international organization and the activity exercised by that organization. Both questions are indeed confined to those forms of supranationalism and regionalism which include the take-over of certain functions traditionally exercised by states, and thus go well beyond mere cooperation at the international legal level.