Saturday, August 30, 2014
The system of optional clause declarations is a unique regime of compulsory jurisdiction based on the two World Courts’ Statutes. This timely book offers a wide-ranging academic survey of the developments of that system, the theoretical and procedural aspects of the unilateral declarations of acceptance and the reservations added to these declarations.
The author critically examines those reservations which undermine the system of compulsory jurisdiction and discusses the major controversies. She considers the various aspects of compulsory jurisdiction giving special attention to the States’ practice, the Courts’ jurisprudence and both Courts’ relevant case law. The book contains a unique comparative analysis of all the declarations of acceptance made since the establishment of the Permanent Court of International Justice while also debating the shortcomings and the future of the system.
Friday, August 29, 2014
- A Century after Sarajevo: Reflections on World War I
- Ja Ian Chong & Todd H. Hall, The Lessons of 1914 for East Asia Today: Missing the Trees for the Forest
- Etel Solingen, Domestic Coalitions, Internationalization, and War: Then and Now
- Jack Snyder, Better Now Than Later: The Paradox of 1914 as Everyone's Favored Year for War
- Tanisha M. Fazal, Dead Wrong?: Battle Deaths, Military Medicine, and Exaggerated Reports of War's Demise
- Jerry Mark Long & Alex S. Wilner, Delegitimizing al-Qaida: Defeating an “Army Whose Men Love Death”
- Liam Anderson, Ethnofederalism: The Worst Form of Institutional Arrangement…?
As increasingly automated – and in some cases fully autonomous – weapon systems enter the battlefield or become possible, it is important that international norms to regulate them head down a path that is coherent and practical. Contrary to the claims of some advocates, autonomous weapon systems are not inherently illegal or unethical. The technologies involved potentially hold promise for making armed conflict more discriminating and causing less harm on the battlefield. They do pose important challenges, however, with regard to law of armed conflict rules regulating the use of weapons. Those challenges demand international attention and special processes for adapting existing law to meet those challenges.
Rather than seeking to impose, up front, a new set of prohibitory rules or seeking to suspend development of autonomous weapon systems pending a comprehensive agreement on rules to govern them, international regulation of autonomous weapons systems should begin with the premise that the law of armed conflict provides an appropriate general framework. States should work to build on that framework through continually-improving interpretive standards and agreed-upon best practices. We propose a three-tiered approach to emerging automation and autonomous weapon technologies: (i) an international agreement that makes clear the applicability of baseline law of armed conflict rules and that codifies standards, practices, and interpretations that states have converged upon over a long period of actual development of systems, in tandem with discussion among states informally, and informed by sufficiently transparent and open sharing of relevant information; (ii) state-level development and inter-state discussion of weapon review practices, tailored to these specific weapons and their battlefield environments; and (iii) close coordination among weapons designers, developers, manufacturers, and military end-users of these systems, with lawyers responsible for legal weapons review, at each granular stage of design, development, and testing. The integration of these three levels can assist to appropriately and realistically shape advancing military technologies while improving adherence to core law of armed conflict principles.
As the world’s coastal states go about dividing up the ocean floor, the work of the Commission on the Limits of the Continental Shelf plays an increasingly important role. The Commission on the Limits of the Continental Shelf: Law and Legitimacy examines the Commission from two different but interrelated perspectives: a legal analysis of the Commission’s decision-making; and a study of normative legitimacy related to the Commission and its procedures. Insights into the history of the development of the concept of the continental shelf in the law of the sea are offered, including an explanation of how the institutionalized method for ascertaining continental shelf limits in the UN Convention on the Law of the Sea came into being. Through a deep-ranging analysis of the Commission and its work, the book introduces a framework for assessing best practices, and will serve as a useful reference for academics, scientists and policymakers alike.
The question of what status the precautionary principle enjoys in international law has once again reared its head; most recently in the Indus Water Treaty dispute between India and Pakistan before the Permanent Court of Arbitration, where the claim for customary status was advanced by Pakistan only to be countered by India. This paper assesses the current state of play in respect to the precautionary principle and its status in international law. The paper does this by identifying what it terms the two camps of precaution, the custom camp and the no custom camp, which find themselves on opposing sides in the debate. The paper argues that the two camps are equally guilty of misunderstanding the precautionary principle and the nature of customary international law, though for different reasons. In doing so the paper relies on the concepts of ‘precaution spotting’ and what is elsewhere termed the ‘rule v. standard’ dialectic. These two concepts help us understand the different claims advanced by the two camps and alert us to the fact that customary international law is best understood if we come to accept that there are multiple ways of identifying customary international rules.
This contribution examines the international legal relevance of the recent Crimean referendum, starting from the premise that, as a matter of international customary law, and as a matter of legal consistency and fairness, a free territorial referendum is emerging as a procedural conditio sine qua non for any territorial re-apportionment. It concludes that the referendum was not free and fair, and could not form a basis for the alteration of Crimea’s territorial status.
- Bart Legum & Anna Crevon, An Outline of Procedure in an Investment Treaty Arbitration – Strategy and Choices
- O. Thomas Johnson & David Pinsky, Representing Claimant: Pre-Arbitration Considerations
- Jeremy K. Sharpe, Representing a Respondent State in Investment Arbitration
- Eloise Obadia & Frauke Nitscheke, The Role of the Secretariat
- Chiara Giorgetti, The Arbitral Tribunal: Selection And Replacement Of Arbitrators
- Andrea Carlevaris, Preliminary matters: Objections, Bi-Furcation, Request for Provisional Measures
- Mark Clodfelter, Written Proceedings
- Catherine Amirfar, Oral Proceedings
- Andrea Kay Bjorklund, Applicable Law in International Investment Disputes
- Rahim Moloo, Evidentiary Issues Arising in the Investment Arbitration Context
- Brooks Daly & Fiona Poon, Technical and Legal Experts in International Investment Disputes
- Neale Bergman, Transparency of the Proceedings and Third Party Participation
- Michelle Bradfield & Guglielmo Verdirame, Costs in International Investment Arbitration
- John Crook, The Award and Discontinuance of the Proceeding
- Carolyn B. Lamm & Eckhard R. Hellbeck, The Enforcement of Awards
- Veijo Heiskanen & Laura Halonen, Post-Award Remedies
Thursday, August 28, 2014
- Editorial Comments
- Sienho Yee, The Competition between and among Intrinsic and Instrumental Values in Selected Competing Visions of the World
- Agnieszka Szpak, What to Do With Failed States—a Quest for a Solution from the Inside
- Padraig McAuliffe, From Watchdog to Workhorse: Explaining the Emergence of the ICC's Burden-sharing Policy as an Example of Creeping Cosmopolitanism
- Harmen van der Wilt, Trafficking in Human Beings, Enslavement, Crimes Against Humanity: Unravelling the Concepts
- Guiguo Wang, Consent in Investor–State Arbitration: A Critical Analysis
- Pallavi Kishore, Special and Differential Treatment in the Multilateral Trading System
Against the background of a broadly shared perception of the US and the EU as very different kinds of international actors, and a related assumption that the approaches of the US Supreme Court and the European Court of Justice towards the internalization of international law are also very different, this article takes a systematic look at the approaches of the European Court of Justice and the US Supreme Court to the internalization of international law over the decade 2002-2012. The perception of the US in recent decades has been as a frequently unilateralist and exceptionalist actor in international relations, with the Supreme Court remaining resistant to law which emanates from outside the American legislative process, or which lacks a clear domestic imprimatur as applicable US law. The EU, by comparison, is seen as having a greater commitment to multilateralism and to the development and observance of international law, and the case-law of the Court of Justice has until recently been broadly viewed – with WTO jurisprudence seen as an exception – as actively contributing to shaping that image through its embrace and internalization of international law norms. The analysis over a ten-year period of the case law of the two courts dealing with international law suggests that, rather than a simplified picture of the Supreme Court as the skeptical judicial arm of an internationally exceptionalist United States and the CJEU as the embracing judicial arm of an open and internationalist European Union, there are many more commonalities between the approaches of the two courts than conventional depictions acknowledge.
Wheatley: Deliberating About Cosmopolitan Ideas: Does a Democratic Conception of Human Rights Make Sense?
One of the major theory-based problems for human rights is that they lack an agreed ontological foundation. The objective of this chapter is to consider whether it is possible to justify global human rights by reference to an application of deliberative democracy to world society, given that the relevant community of fate is the unbounded human species. Three approaches can be seen in the literature: human rights as globalized constitutional rights (the position advanced by Jürgen Habermas); human rights as global constitutional rights; and human rights as a global ethic arrived at through reasoned deliberations. This consensus literature can, though, be contrasted with work that understands human rights as the politics of dissensus – the product of outrage and emotion, not reason. Drawing on the insights from the social systems theories of Niklas Luhmann and Gunther Teubner, this work considers the implications of the dissensus literature, concluding that human rights becomes meaningful primarily as an argument against politics. The contingent and contested device of the human ‘face’, which demands inclusion in the system and complains of violations of physical and psychological integrity, allows for a global (cosmopolitan) conversation around ‘being human’ – and provides the starting point for any discussion of the idea of human rights.
- Robert French, A Public Law Perspective on Intellectual Property
- Hans Morten Haugen, How Are Indigenous and Local Communities' Rights Over Their Traditional Knowledge and Genetic Resources Protected in Current Free Trade Negotiations? Highlighting the Draft Trans-Pacific Partnership Agreement (TTPA)
- Geneviève Teil, Nature, the CoAuthor of Its Products? An Analysis of the Recent Controversy Over Rejected AOC Wines in France
- Pawarit Lertdhamtewe, The Protection of Geographical Indications in Thailand
International law skeptics have long worried that a focus on compliance with international law may overstate effectiveness — the extent to which international law induces changes in state behavior. In this essay, I argue that using compliance as the primary metric to evaluate international law risks understating its effectiveness for at least two reasons. First, noncompliance is often used as a negotiation technique. Despite the growth of international tribunals in recent decades, international law remains principally a negotiated system of law. States thus often use compliance disputes as tools to define legal obligations prospectively, rather than only or even primarily to determine responsibility retrospectively. Second, a state may use its own short-term noncompliance as part of long-term strategy to change its own behavior. Interest groups may press for a state to join an international agreement so that they can use the state’s noncompliance to push for changes domestically. Governments may also join regimes with which they know they will be noncompliant in order to gain access to foreign assistance, which can enhance compliance over time. Far from indicating international law’s ineffectiveness, when used in these two ways noncompliance indicates states’ long term commitment to working within a legal regime.
Wednesday, August 27, 2014
This article considers the relationship between international law and the UN Security Council. The practical power of the Council is constituted at the intersection of its legal framing, its political legitimacy, and the interests of powerful states. This sometimes means the Council has less power than is assigned to it by the UN Charter, but it often means that it has more. It is clear that the Council sits within the international legal system, the legal limits on its action are interpreted in light of prior Council practice, and thus the meaning of ‘compliance’ and ‘violation’ of the Charter changes over time. Some transgressions of the Charter are understood as informal amendments to it; others are seen as threats to international peace and security that impel enforcement action. This ambiguity in the law and practice of the United Nations is inherent in the idea of the ‘international rule of law’. The Council straddles the unstable boundary between international law and politics, both undermining and reinforcing the distinction between them.
- On the Philosophy of International Criminal Law
- Anja Matwijkiw, Introduction: On the Philosophy of International Criminal Law
- Peg Birmingham, Hannah Arendt’s Philosophy of Law Approach to International Criminal Law
- Samuel Moyn, Judith Shklar on the Philosophy of International Criminal Law
- Giorgio Bongiovanni, Giovanni Sartor & Chiara Valentini, Philosophy of Law and International Criminal Law: Between Peace and Morality
- Larry May, A Hobbesian Defense of International Criminal Law
- Michael Davis, Between Peace and War: The Moral Justification of State-Sanctioned Killing of Another State’s Civilian Officials
- Alejandro Chehtman, Contemporary Approaches to the Philosophy of Crimes against Humanity
- Ryan Long, Responsibility, Authority, and the Community of Moral Agents in Domestic and International Criminal Law
- Erasmus Mayr, International Criminal Law, Causation, and Responsibility
- Steve Viner, Justice and Recognizing the Rights of States
- Zachary Hoskins, Punishing States and the Spectre of Guilt by Association
- Henrik Palmer Olsen & Stuart Toddington, The End of an Era: Static and Dynamic Interpretation in International Courts
- Anja Matwijkiw & Bronik Matwijkiw, Stakeholder Applications
The International Criminal Court (ICC) sits atop a legal regime that depends heavily on national governments and institutions of criminal justice in two crucial ways. First, the ICC exercises “complementary” jurisdiction, prosecuting only when states cannot or will not do so. National courts should prosecute the lion’s share of ICC crimes. Second, the ICC will depend on the cooperation of national institutions and officials for everything from gaining custody of the accused to gathering evidence and securing witnesses. In order to play their role in the ICC system, states must enact legislation that addresses both aspects of their relationship with the ICC: complementarity and cooperation. Because implementation legislation is costly, states that enact complementarity and cooperation laws display a higher level of commitment to the ICC than those who do not. This paper tests the hypotheses that democracies and states with transitional justice mechanisms underway will be more likely to enact implementing legislation and that states that are most involved in armed conflict abroad – whether through war or United Nations peacekeeping operations – will be less likely to do so. The analysis of data from more than 150 countries employs a Heckman selection model that takes into account whether states have ratified the Rome Statute in the first place. The results strongly confirm the democracy and transitional justice hypotheses, but states involved in international wars are actually more likely to pass ICC implementing legislation.
This article provides a systematic overview of the rules governing the end of application of international humanitarian law, or the law of armed conflict. It articulates the general principle that unless there is a good reason of text, principle or policy that warrants an exception, the application of IHL will cease once the conditions that triggered its application in the first place are no longer met. For IHL to apply, its distinct thresholds of application – international armed conflict, belligerent occupation, and non-international armed conflict – must continue to be satisfied at any given point in time. The article also examines situations in which a departure from the general rule is warranted, as well as the factors that need to be taken into account in determining the end of each type of armed conflict. In doing so, the article analyzes terminating processes and events, which generally end the application of IHL (but not necessarily all of it), and transformative processes and events, which end the application of one IHL sub-regime but immediately engage another. Finally, the article briefly looks at the (putative) armed conflict between the US and Al-Qaeda and its seemingly imminent end.
Barcelona Workshop on Global Governance
The Public and the Private in Global Governance
15 & 16 January 2015 – IBEI & ESADEgeo, Barcelona
Call for Papers
Global governance is constructed by both public and private actors. Governments have created international institutions and transgovernmental networks; companies have established selfregulatory structures; civil society and business organizations have been active in norm‐setting and monitoring. They have joined forces in various hybrid organizations, which collaborate and compete with each other, and all perform functions in the many regulatory spaces that include institutions and actors of various origins. At the same time, many privately‐created bodies claim to provide public goods, while many institutions of public origin are criticized for pursuing private gains or for being strongly influenced by private interests. As a result, the boundaries between public and private in global governance have become blurred, and the classical public/private distinction – central to structuring our understanding of domestic government – is under increasing pressure. On this background, the 2015 Barcelona Workshop on Global Governance asks how ‘the public’ and ‘the private’ are related in current structures of global governance. Key questions involve:
The Barcelona Workshop on Global Governance is a venue for the study of global governance – its structure, effects, and problems – from an interdisciplinary perspective, bringing together scholarship from international relations, law, sociology, anthropology, political theory, public administration and history. Its 3rd edition will be held on 15 & 16 January 2015 in Barcelona. Confirmed practitioner speakers include Narcis Serra (former Spanish Defense Minister and Deputy Prime Minister) and Javier Solana (former NATO Secretary General and EU High Representative for Common and Foreign Security Policy). Confirmed academic keynote speakers include Andrew Hurrell (University of Oxford) and Jonas Tallberg (Stockholm University).
- Does it make sense to maintain a distinction between public and private authority, and if so, how ought ‘publicness’ to be reformulated for the global sphere? What could take the place of the public/private distinction for structuring accounts of legitimacy and accountability in global governance?
- Do the authority and legitimacy of global governance, both normatively and sociologically, depend on the ‘publicness’ of its institutions?
- How do institutions (including privately‐created ones) generate, or seek to generate, ‘publicness’ in their rhetoric, procedures and accountability mechanisms, and with what success?
- How do private actors, both national and transnational, participate in global governance regimes? What patterns of interaction exist between privately‐ and publicly‐created institutions?
- What success can the construction of a ‘global public law’ as a law of global governance have?
The workshop is organized by ESADEgeo (ESADE Business School’s Center for Global Economy and Geopolitics) and IBEI (Institut Barcelona d’Estudis Internacionals).
We invite abstract proposals from interested scholars from all disciplines. Proposals should not exceed 500 words in length. Preferred format for all submissions is PDF. Please send your proposal as an attachment to email@example.com and insert “Submission: Barcelona Workshop on Global Governance” as the subject line of the message. The deadline for abstracts is 29 September 2014. All proposals will undergo peer review and notifications of acceptance will be sent out by 22 October 2014. Full papers are expected to be delivered by 8 January 2014 for circulation among participants.
Send submissions: firstname.lastname@example.org with Subject: “Submission: Barcelona Workshop on Global Governance”
Deadlines: 29 September, 2014
Notifications of acceptance: 22 October, 2014
Xavier Fernandez‐i‐Marin, ESADEgeo
Jacint Jordana, IBEI
Nico Krisch, IBEI
Angel Saz‐Carranza, ESADEgeo
Tuesday, August 26, 2014
- Special Issue: International and European Chemicals Regulation
- Elizabeth Fisher, Chemicals as Regulatory Objects
- Katharina Kummer Peiry, The Chemicals and Waste Regime as a Basis for a Comprehensive International Framework on Sustainable Management of Potentially Hazardous Materials?
- Daryl Ditz & Baskut Tuncak, Bridging the Divide between Toxic Risks and Global Chemicals Governance
- Henrik Hallgrim Eriksen & Franz Xaver Perrez, The Minamata Convention: A Comprehensive Response to a Global Problem
- Jessica Templeton & Pia Kohler, Implementation and Compliance under the Minamata Convention on Mercury
- Lucas Bergkamp & Nicolas Herbatschek, Regulating Chemical Substances under REACH: The Choice between Authorization and Restriction and the Case of Dipolar Aprotic Solvents
- Original Articles
- Chris Wold, Victoria Johnston & Benjamin Saver, Addressing the Underreporting of Methane Emissions from Natural Gas Production and Thawing Permafrost
- Akiva Fishman & Krystof Obidzinski, European Union Timber Regulation: Is It Legal?
- Case Note
- James Maurici & Alistair Mills, Regina (Buckinghamshire County Council and others) v. Secretary of State for Transport
- James Pattison, Justa piratica: the ethics of piracy
- Rebecca Adler-Nissen, Symbolic power in European diplomacy: the struggle between national foreign services and the EU's External Action Service
- Florian Schneider, Reconceptualising world order: Chinese political thought and its challenge to International Relations theory
- Leonie Holthaus, L.T. Hobhouse and the transformation of liberal internationalism
- Thomas Richard Davies, Educational internationalism, universal human rights, and international organisation: International Relations in the thought and practice of Robert Owen
- Vincent Charles Keating & Jan Ruzicka, Trusting relationships in international politics: No need to hedge
- Catherine Goetze & Berit Bliesemann de Guevara, Cosmopolitanism and the culture of peacebuilding
- Matthieu Chillaud, IR in France: state and costs of a disciplinary variety
The book argues that the decision-making processes within international organizations and other global governance bodies ought to be subjected to procedural and substantive legal constraints that are associated domestically with the requirements of the rule of law. The book explains why law — international, regional, domestic, formal or soft — should restrain global actors in the same way that judicial oversight is applied to domestic administrative agencies. It outlines the emerging web of global norms designed to protect the rights and interests of all affected individuals, to enable public deliberation, and to promote the legitimacy of the global bodies. These norms are being shaped by a growing convergence of expectations of global institutions to ensure public participation and representation, impartiality and independence of decision-makers, and accountability of decisions. The book explores these mechanisms as well as the political and social forces that are shaping their development by analysing the emerging judicial practice concerning a variety of institutions, ranging from the UN Security Council and other formal organizations to informal and private standard-setting bodies.
Die Untersuchung geht der Frage nach, inwieweit die aus dem Recht des diplomatischen Schutzes stammende local remedies rule auch auf völkervertragliche Investitionsschiedsverfahren zwischen ausländische Investoren und Gaststaaten Anwendung findet. Eingegangen wird dabei auf die grundlegenden rechtsdogmatischen Unterschiede zwischen Investor-Staat-Schiedsverfahren und dem Institut des diplomatischen Schutzes.
Darüber hinaus wird die Vertragspraxis ebenso beleuchtet wie die Kritik am bestehenden System der Investor-Staat-Schiedsverfahren, die sich vielfach mit der Forderung verbindet, Investoren sollten verpflichtet werden, vor Erhebung einer Schiedsklage die verfügbaren nationalen Rechtsbehelfe im Gaststaat auszuschöpfen. Vertragliche Gestaltungsmöglichkeiten und ihre Auswirkungen werden rechtspolitisch diskutiert. Abschließend wird erörtert, ob die Nutzung nationaler Rechtsbehelfe eine Voraussetzung für die Verletzung eines völkervertraglichen Schutzstandards sein kann.
- Ekaterina Ortiz Linares & Marisela Silva Chau, Reflections on the Colombian case law on the protection of medical personnel against punishment
- Miroslav Alimpić, The Vukovar Hospital case from the perspective of a national investigative judge
- Sorcha O'Callaghan & Leslie Leach, The relevance of the Fundamental Principles to operations: learning from Lebanon
- Caroline Abu Sa‘Da, Françoise Duroch & Bertrand Taithe, Attacks on medical missions: overview of a polymorphous reality: the case of Médecins Sans Frontières
- Leonard S. Rubenstein, A way forward in protecting health services in conflict: moving beyond the humanitarian paradigm
- In conversation with Pierre Gentile - Head of Project ‘Health Care in Danger’, ICRC Directorate of Operations.
- Emanuela-Chiara Gillard, The law regulating cross-border relief operations
- Antonio Donini & Daniel Maxwell, From face-to-face to face-to-screen: remote management, effectiveness and accountability of humanitarian action in insecure environments
- Shawan Jabarin, The Occupied Palestinian Territory and international humanitarian law: a response to Peter Maurer
Monday, August 25, 2014
The Institute for Global Law and Policy (IGLP) at Harvard Law School invites you to apply to participate in our 2015 Workshop in Doha, Qatar, from January 2-11, 2015.
IGLP: The Workshop is an intensive residential program for doctoral and post-doctoral law scholars and junior faculty. The aim of The Workshop is to strengthen the next generation of scholars by placing them in collaboration with their global peers as they develop innovative ideas and alternative approaches to issues of global law, economic policy, social justice and governance.
Sponsored by the Qatar Foundation and hosted by Hamad bin Khalifa University, the Workshop brings together more than 100 young scholars and more than 50 senior and junior faculty from around the world for serious research collaboration and debate. While in residence in Doha, participants review current scholarly developments, reconsider canonical texts and network with colleagues from across the world. Intensive writing workshops offer participants the opportunity to receive valuable feedback on their own research from their peers and more senior colleagues in small group settings.
This book contributes to a long-standing but ever topical debate about whether persons fleeing war to seek asylum in another country – ‘war refugees’ – are protected by international law. It seeks to add to this debate by bringing together a detailed set of analyses examining the extent to which the application of international humanitarian law (IHL) may usefully advance the legal protection of such persons. This generates a range of questions about the respective protection frameworks established under international refugee law and IHL and, specifically, the potential for interaction between them. As the first collection to deal with the subject, the eighteen chapters that make up this unique volume supply a range of perspectives on how the relationship between these two separate fields of law may be articulated and whether IHL may contribute to providing refuge from the inhumanity of war.
- Mark Dawson & Elise Muir, One for All and All for One? The Collective Enforcement of EU Law
- Dimitrios-Panagiotis L Tzakas, Collective Redress in the Field of EU Competition Law: The Need for an EU Remedy and the Impact of the Recent Commission Recommendation
- Iris Benöhr, Collective Redress in the Field of European Consumer Law
- Mariolina Eliantonio, Collective Redress in Environmental Matters in the EU: A Role Model or a ‘Problem Child’?
- Karin Lukas, The Collective Complaint Procedure of the European Social Charter: Some Lessons for the EU?
- Graham Jones, Collective Redress in the European Union: Reflections from a National Judge
- Kimberley van den Bergen, Advertising Restrictions versus the Freedom to Provide Services
- Umar A. Oseni, Dispute management in Islamic financial institutions: a case study of near Sukuk defaults
- Shujaat Abbas, Trade liberalization and its economic impact on developing and least developed countries
- Philip Joseph Wells, Unilateralism and protectionism in the World Trade Organization: the interpretation of the chapeau within GATT Article XX
- Bethel Uzoma Ihugba, A critical analysis of the auditing and reporting functions of Nigeria Extractive Industry Transparency Initiative (NEITI) Act 2007: Lessons for EITI countries
- Norman Mugarura, The letter of credit, its resilience and viability in securing international commercial transactions
Increasingly, European states are using policy on the reception of asylum seekers as an instrument of immigration control, eg by deterring the lodging of asylum applications, preventing integration into their societies and exercising a large degree of control over asylum seekers in order to facilitate expulsion. The European Union is currently engaged in a process of developing minimum conditions for the reception of asylum seekers, as part of a Common European Asylum System. This book critically examines the outcomes of the negotiation process on these minimum standards - Directive 2003/9/EC and Directive 2013/33/EU - in relation to international refugee law, international social security law and international human rights law. It presents a comprehensive analysis of state obligations that stem from these different fields of law with regard to asylum seekers? access to the labour market and social security benefits and compares them to the minimum standards developed in the European Union. To this end, it offers an in-depth study into the notion of non-discrimination on the basis of nationality in the field of social security and a detailed analysis of recent developments in the case law of the European Court on Human Rights on positive obligations in the socioeconomic sphere. It takes into account both the special characteristics of international legal obligations for states in the socioeconomic sphere and the legal consequences of the tentative legal status of asylum seekers. In addition, this book particularly examines how the instrumental use of social policy relates to international law.
- Björn Arp, Denunciation Followed by Re-Accession with Reservations to a Treaty: A Critical Appraisal of Contemporary State Practice
- Sondre Torp Helmersen, The Prohibition of the Use of Force as Jus Cogens: Explaining Apparent Derogations
- Abel S. Knottnerus, The Security Council and the International Criminal Court: The Unsolved Puzzle of Article 16
- Rolf Wagner, Do We Need a Rome 0 Regulation?
Sunday, August 24, 2014
- Jos Philips, On Setting Priorities among Human Rights
- Michael Galchinsky, Lament as Transitional Justice
- Sébastien Jodoin, Can Rights-Based Approaches Enhance Levels of Legitimacy and Cooperation in Conservation? A Relational Account
- Hannah E. Britton & Laura A. Dean, Policy Responses to Human Trafficking in Southern Africa: Domesticating International Norms
- Oritsegbubemi Anthony Oyowe, An African Conception of Human Rights? Comments on the Challenges of Relativism
This chapter for the Oxford Handbook of International Legal Theory describes aspects of today’s international legal positivism. (International) legal positivism is dead just as much as it is all-pervading; most theorists use the term ‘positivism’ as a pejorative, yet it is utilised constantly by international lawyers, both scholars and practitioners. In Section 2, positivism is distinguished from today’s portmanteau ‘formalism’; it is shown that in most, but not all respects, positivism is not wedded to a formalist stance. Section 3 distinguishes modern, jurisprudentially informed positivisms (foremost those based on Hart and Kelsen) from the straw man we have erected of a classical, 19th century international legal positivism. This straw man is historical humbug just as it remains today a very potent force of critique or unquestioning acceptance by certain orthodox ‘positivists’.
Section 4 attempts to draw out one specific aspect of one modern positivist approach to international law: Jean d’Aspremont’s international legal positivism, as a socio-realistic variant of Hartianism is, so it is argued, surprisingly close to Alf Ross’ Scandinavian Legal Realism. So close does his modification of Hart’s theory come to Ross that Hart would very likely have objected to this move - and for good reasons. Neglecting the normative aspect of rules strengthens the predictable critique, levelled in 1913 by Kelsen against Ehrlich: either the Ought is neglected by legal sociology or such an enterprise relies on the normative aspect in a subconscious manner. The chapter concludes on a pessimistic note: there is no one international legal positivism. Hart and Kelsen only appear close on the surface, but are worlds apart in terms of their philosophical foundation.