Saturday, March 21, 2015
Cerone: The ICC and Palestinian Consent
Friday, March 20, 2015
Orakhelashvili: The Nature of Authority Behind Sanctions: Implications of (Un)Constitutionality
New Issue: Journal of International Economic Law
- Thomas Cottier, The Common Law of International Trade and the Future of the World Trade Organization
- Rostam J. Neuwirth, Global Market Integration and the Creative Economy: The Paradox of Industry Convergence and Regulatory Divergence
- Valentina Vadi, Crossed Destinies: International Economic Courts and the Protection of Cultural Heritage
- Julien Chaisse & Christian Bellak, Navigating the Expanding Universe of International Treaties on Foreign Investment: Creation and Use of a Critical Index
- Vera Thorstensen, Carolina Müller, & Daniel Ramos, Exchange Rate Measures: Who Judges The Issue—IMF or WTO?
- Samuel Dahan, Olivier Fuchs, & Marie-Laure Layus, Whatever It Takes? Regarding the OMT Ruling of the German Federal Constitutional Court
- Pasha L. Hsieh, Liberalizing Trade in Legal Services under Asia-Pacific FTAs: The ASEAN Case
Palmer: Courts in Conflict: Interpreting the Layers of Justice in Post-Genocide Rwanda
The rise of international criminal trials has been accompanied by a call for domestic responses to extraordinary violence. Yet there is remarkably limited research on the interactions among local, national, and international transitional justice institutions. Rwanda offers an early example of multi-level courts operating in concert, through the concurrent practice of the United Nations International Criminal Tribunal for Rwanda (ICTR), the national Rwandan courts, and the gacaca community courts.
Courts in Conflict makes a crucial and timely contribution to the examination of these pluralist responses to atrocity at a juncture when holistic approaches are rapidly becoming the policy norm. Although Rwanda's post-genocide criminal courts are compatible in law, an interpretive cultural analysis shows how and why they have often conflicted in practice. The author's research is derived from 182 interviews with judges, lawyers, and a group of witnesses and suspects within all three of the post-genocide courts. This rich empirical material shows that the judges and lawyers inside each of the courts offer notably different interpretations of Rwanda's transitional justice processes, illuminating divergent legal cultures that help explain the constraints on the courts' effective cooperation and evidence gathering. The potential for similar competition between domestic and international justice processes is apparent in the current practice of the International Criminal Court (ICC). However, this competition can be mitigated through increased communication among the different sites of justice, fostering legal cultures of complementarity that can more effectively respond to the needs of affected populations.
Thursday, March 19, 2015
Duina: Making Sense of the Legal and Judicial Architectures of Regional Trade Agreements Worldwide
Regional trade agreements (RTAs) constitute one of the most important elements of the international economic order. Researchers have accordingly embarked on comparative analyses of their design. Yet one fundamental question remains unanswered: how have officials in different RTAs responded to the challenge of regulatory misalignments among the member states? In this article, I turn to 10 of the most established RTAs in the world and document three types of responses. Some RTAs rely on the principle of mutual recognition or references to existing international standards; the same agreements also rely on technical dispute resolution mechanisms. Other RTAs, by contrast, make use of extensive harmonization and permanent courts charged with interpreting law. Yet a third group exhibits a hybrid design. This heterogeneity in legislative and judicial design invites explanation. I show that there is a remarkable correspondence between the legal traditions of the member states (common vs. civil law) and the design of RTAs. This correspondence undermines the claims of world polity theorists about the nature of the international order, but is consistent with other strands of sociological institutionalism and certain elements of rationalist and neoliberal institutionalism. I conclude by reflecting on the implications of different RTA designs for the regulation of everyday life in the member states, the World Trade Organization as an international regulatory body, and national sovereignty and democracy.
New Issue: Questions of International Law
- The MONUSCO Intervention Brigade: A test-case for the application of International Humanitarian Law and International Criminal Law to a robust UN peace-keeping operation
- Introduced by Giulio Bartolini and Marco Pertile
- Yutaka Arai-Takahashi, The intervention brigade within the MONUSCO. The legal challenges of applicability and application of IHL
- Barbara Sonczyk, The protection of the Intervention Brigade under Article 8 (2)(e)(iii) of the Rome Statute of the International Criminal Court
New Issue: Journal of International Wildlife Law & Policy
- Original Articles
- Thomas T. Ankersen, Gabriela Stocks, Franklin Paniagua & Sekita Grant, Turtles Without Borders: The International and Domestic Law Basis for the Shared Conservation, Management, and Use of Sea Turtles in Nicaragua, Costa Rica, and Panama
- Wendy Jackson & Ton Bührs, International Environmental Regimes: Understanding Institutional and Ecological Effectiveness
- Geoffrey Wandesforde-Smith, On the Life and Death of Wildlife Treaties
New Volume: Yearbook of Polar Law
New Issue: Journal of the History of International Law
- Ronald Janse, (Why) Was the World Bank Supposed to Be a Nonpolitical Organization? An Interpretation of the Original Meaning and Rationale of Article 4(10) of the Articles of Agreement of the International Bank for Reconstruction and Development, 1941–1948
- Valentina Vadi, Alberico Gentili on Roman Imperialism: Dialectic Antinomies
Peters: Verhältnismäßigkeit als globales Verfassungsprinzip
Der Beitrag zeigt, dass drei Versionen des Verhältnismässigkeitsprinzips im Völkerrecht existieren und dass diese drei unterschiedliche konstitutionelle Funktionen haben. Die horizontale Version 1 gilt unter anderem im Bereich der Gegenmassnahmen, einschliesslich der Selbstverteidigung. Das Prinzip bezieht sich hier auf die Relation zwischen Aktion (Völkerrechtsverletzung) eines Staates und der erlaubten Reaktion eines anderen Staates. Die diagonale Version 2 betrifft das Verhältnis zwischen einem nationalen öffentlichen Interesse und Partikularinteressen, von Individuen (im Menschenrechtsschutz sowie im humanitären Völkerrecht) oder von Investoren. Die vertikale Version 3 bezieht sich auf die Relation zwischen einem globalen öffentlichen Interesse, z.B. am Freihandel, und Partikularinteressen von Staaten.
This paper shows that three versions of the principle of proportionality exist in international law, and that these three have different constitutional functions. The horizontal version 1 applies, inter alia, in the field of countermeasures including self defence. The principle here refers to the relation between action (breach of international law) of the state and the admissible reaction of another state. The diagonal version 2 concerns the relation between and national public interest and particular interests, of individuals (in human rights law and international humanitarian law) or of investors. The vertical version 3 refers to the relation between a global public interest, for example in free trade, and particular interests of states.
Wednesday, March 18, 2015
Plender: Issues in International Migration Law
- Richard Plender, Nationality Law and Immigration Law
- Ajay Bailey, Global Migration: Current Trends and Issues
- Ryszard Cholewinski, Migration for Employment
- Gijsbert Vonk, Access to Social Protection for Non-Citizen Migrants: The Position of Irregular Immigrants
- Dora Kostakopoulou, Capricious Games of Snakes and Ladders: The Nexus of Migration and Integration in Light of Human Rights Norms
- Guy S. Goodwin-Gill, The Admission of Refugees
- Adam Weiss, Family Reunifi cation at the Interface of EU Law and the European Convention on Human Rights
- Dimitry Kochenov,The Right to Leave Any Country Including One’s Own
- Clifford Mailer, Deportation and Expulsion
- Alessia di Pascale,Exceptional Duties to Admit Aliens
- Sara Iglesias Sánchez, Free Movement of Persons and Regional International Organisations
- Elspeth Guild, The Asylum Seeker’s Right to Free Legal Assistance and/or Representation in EU Law
Hakimi: Custom's Method and Process: Lessons from Humanitarian Law
Much of the literature on customary international law (CIL) goes to method: what is the proper method for “finding” CIL — that is, for determining that particular norms qualify as CIL? The principal goals of this literature are to help identify whether norms that are claimed to be CIL are really CIL and thus to reduce the volatility and susceptibility to abuse in CIL. I argue in this book chapter that the method for finding CIL might be so elusive because the question itself is misconceived. The question of how to find CIL presupposes that finding CIL is an objective exercise and somehow removed from the process for making CIL. The process is notoriously undisciplined and politically charged; disparate actors promote their own interests by advancing and responding to one another’s legal claims. The methodological question assumes that CIL-finding is distinct — that actors who find CIL do not advance their own agendas but rather assess the evidence objectively, and thus that their decisions help weed out invalid claims and settle CIL. I use the recent rise of CIL in international humanitarian law to show that these assumptions are flawed. CIL-finding is deeply entangled with CIL-making. The two exercises operate in much the same way and through the same process, so they share similar limitations. My argument has two practical implications. First, non-state actors can play a much larger role in the formation of CIL than the literature now recognizes. Second, methods for finding CIL are unlikely to discipline global actors or to impose order on CIL, so long as the process for making CIL remains highly undisciplined and disordered.
Virzo & Ingravallo: Evolutions in the Law of International Organizations
- Niels Blokker, General Introduction
- Marie-Clotide Runavot, The Intergovernmental Organization and the Institutionalization of International Relations: The Modelling of International Organization at Stake
- Angela Di Stasi, About Soft International Organizations: An Open Question
- Piero Pennetta, International Regional Organizations: Problems and Issues
- Alessandro Polsi, Universalism and Regionalism in the History of the United Nations and of Specialized Agencies
- Giovanni Cellamare, The Activities for the Maintenance of International Peace in the Relationship between the United Nations and Regional Organizations
- Víctor Luis Gutiérrez Castillo & Jonatán Cruz Ángeles, Islam and International Organizations: The Organization of Islamic Cooperation
- Susanna Cafaro, The International Financial Crisis and the Evolution of the Bretton Woods Institutions
- Concetta Brescia Morra, The Evolution of the Banking Supervision Architecture in Europe
- Maria Rosaria Mauro, The Protection of Non-economic Values and the Evolution of International Economic Organizations: The Case of the World Bank
- Jacob Katz Cogan, The Changing Form of the International Law Commission's Work
- Roberto Virzo, The Proliferation of Institutional Acts of International Organizations: A Proposal for Their Classification
- Vittorio Mainetti, The League of Nations and the Emergence of Privileges and Immunities of International Organizations
- Massimo Francesco Orzan, International Organizations and Immunity from Legal Process: An Uncertain Evolution
- Guillaume Le Floch, Responsibility for Human Rights Violations by International Organizations
- Pietro Pustorino, The Control Criterion between Responsibility of States and Responsibility of International Organizations
- Berta Esperanza Hernández-Truyol, International Organizations and Gender Discrimination: Supersexing Gender Mainstreaming
- Ivan Ingravallo, Handle with Care! The Succession between International Organizations
- Elisa Tino, Settlement of Disputes by International Courts and Tribunals of Regional International Organizations
- Daniele Gallo, The Right of Access to Justice for the Staff of International Organizations: The Need for a Reform in the Light of the ICJ Advisory Opinion of 1 Feb. 2012
Lauterpacht Centre Friday Lunchtime Lecture Series for Easter Term 2015
- April 24, 2015: Chanaka Wickremasinghe (U.K. Foreign and Commonwealth Office), Immunity of State officials from foreign criminal jurisdiction – some developments in UK practice
- May 1, 2015: Ursula Kriebaum (Univ. of Vienna - Law), Investment Tribunals and Human Rights
- May 8, 2015: Leena Grover (Swiss National Science Foundation Research Fellow), Interpreting Crimes in the Rome Statute of the International Criminal Court
New Issue: Humanity
- Special Issue: Toward a History of the New International Economic Order
- Resolutions Adopted on the Report of the AD HOC Committee of the Sixth Special Session
- Nils Gilman, The New International Economic Order: A Reintroduction
- Sanctifying National Sovereignty in the Name of Postcolonial Humanity
- Priya Lal, African Socialism and the Limits of Global Familyhood: Tanzania and the New International Economic Order in Sub-Saharan Africa
- Bret Benjamin, Bookend to Bandung: The New International Economic Order and the Antinomies of the Bandung Era
- Roland Burke, Competing for the Last Utopia?: The NIEO, Human Rights, and the World Conference for the International Women’s Year, Mexico City, June 1975
- "A Trade Union of the 'Developing' Nations"
- Christopher R. W. Dietrich, Mossadegh Madness: Oil and Sovereignty in the Anticolonial Community
- Giuliano Garavini, From Boumedienomics to Reaganomics: Algeria, OPEC, and the International Struggle for Economic Equality
- Daniel J. Whelan, “Under the Aegis of Man”: The Right to Development and the Origins of the New International Economic Order
- Johanna Bockman, Socialist Globalization against Capitalist Neocolonialism: The Economic Ideas behind the New International Economic Order
- Subaltern International Law
- Umut Özsu, “In the Interests of Mankind as a Whole”: Mohammed Bedjaoui’s New International Economic Order
- Antony Anghie, Legal Aspects of the New International Economic Order
- Jennifer Bair, Corporations at the United Nations: Echoes of the New International Economic Order?
- From Accommodation to Rejection
- Kevin O’Sullivan, The Search for Justice: NGOs in Britain and Ireland and the New International Economic Order, 1968–82
- Patrick Sharma, Between North and South: The World Bank and the New International Economic Order
- Daniel J. Sargent, North/South: The United States Responds to the New International Economic Order
- Victor McFarland, The New International Economic Order, Interdependence, and Globalization
Zemach: National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute
The Rome Statute of the International Criminal Court completely divests the Court of the power to compel a state to disclose evidence in its possession if the state opposes such disclosure on grounds of national security. If a state refuses to disclose information essential to the adjudication of a case on national security grounds, the ICC may settle fair trial concerns either by drawing factual inferences favourable to the defendant or by staying the proceedings. I argue, however, that in practice such judicial powers do not provide a sufficient guarantee of a fair trial. I propose to allay fair trial concerns arising from the refusal of states to allow the ICC access to evidence in their possession by introducing a reform in the exercise of the ICC's prosecutorial discretion. According to my proposal, the requirement of a fair trial, which entails the disclosure of material essential for the defence, would be incorporated into the criteria that guide the ICC Prosecutor in the selection of cases for prosecution. Although the present article focuses on the issue of national security evidence, the reach of the proposed reform extends to all cases of state refusal to allow the ICC access to evidence, regardless of the grounds for refusal.
Tuesday, March 17, 2015
Kalicki & Joubin-Bret: Reshaping the Investor-State Dispute Settlement System
- Meg Kinnear, Foreword
- Anna Joubin-Bret & Jean E. Kalicki, Introduction
- Anne van Aaken, Delegating Interpretative Authority in Investment Treaties: The Case of Joint Administrative Commissions
- Joshua Karton, Lessons from International Uniform Law
- Michael Ewing-Chow & Junianto James Losari, Which Is to Be the Master? Extra-Arbitral Interpretative Procedures for IIAs
- Tomoko Ishikawa, Keeping Interpretation in Investment Treaty Arbitration ‘on Track’: The Role of State Parties
- Baiju S. Vasani & Anastasiya Ugale, Travaux Préparatoires and the Legitimacy of Investor-State Arbitration
- Karen L. Kizer & Jeremy K. Sharpe, Reform of Investor-State Dispute Settlement: the U.S. Experience
- Elizabeth Boomer, Rethinking Rights and Responsibilities in Investor-State Dispute Settlement: Some Model International Investment Agreement Provisions
- Locknie Hsu, Examining the Formative Aspect of Investment Treaty Commitments: Lessons from Commercial Law and Trade Law
- Liang-Ying Tan & Amal Bouchenaki, Limiting Investor Access to Investment Arbitration: A Solution without a Problem?
- Daniel Kalderimis, Back to the Future: Contemplating a Return to the Exhaustion Rule
- Silvia Constain, ISDS Growing Pains and Responsible Adulthood
- Nicolette Butler, In Search of a Model for the Reform of International Investment Dispute Resolution: An Analysis of Existing International and Regional Dispute Settlement Mechanisms
- Theodore R. Posner & Marguerite C. Walter, The Abiding Role of State-State Engagement in the Resolution of Investor-State Disputes
- Omar E. García-Bolívar, Permanent Investment Tribunals: The Momentum is Building Up
- Eduardo Zuleta, The Challenges of Creating a Standing International Investment Court
- Luis González García, Making Impossible Investor-State Reform Possible
- Barton Legum, Appellate Mechanisms for Investment Arbitration: Worth a Second Look for the Trans-Pacific Partnership and the Proposed EU-U.S. FTA?
- Eun Young Park, Appellate Review in Investor State Arbitration
- Gabriel Bottini, Reform of the Investor-State Arbitration Regime: The Appeal Proposal
- Jaemin Lee, Introduction of an Appellate Review Mechanism for International Investment Disputes: Expected Benefits and Remaining Tasks
- Kristina Anđelić, Why ICSID Doesn’t Need an Appellate Procedure, and What to Do Instead
- Roberto Castro de Figueiredo, Fragmentation and Harmonization in the ICSID Decision-Making Process
- Jan Asmus Bischoff, Initial Hiccups or More? Efforts of the EU to Find Its Future Role in International Investment Law
- J.J. Saulino & Josh Kallmer, The Emperor Has No Clothes: A Critique of the Debate Over Reform of the ISDS System
- Antonio R. Parra, Advancing Reform at ICSID
- Julia Salasky & Corinne Montineri, UN Commission on International Trade Law and Multilateral Rule-making: Consensus, Sovereignty and the Role of International Organizations in the Preparation of the UNCITRAL Rules on Transparency
- David Gaukrodger & Kathryn Gordon, Inter-Governmental Evaluation of Investor-State Dispute Settlement: Recent Work at the OECD-Hosted Freedom of Investment Roundtable
- Stephan W. Schill, The Sixth Path: Reforming Investment Law from Within
- Adam Raviv, Achieving a Faster ICSID
- Joongi Kim, Streamlining the ICSID Process: New Statistical Insights and Comparative Lessons from Other Institutions
- Jeffrey Sullivan & David Ingle, Interim Costs Orders: The Tribunal’s Tool to Encourage Procedural Economy
- Matthew Hodgson, Costs in Investment Treaty Arbitration: The Case for Reform
- Mark Feldman, Distinguishing Investors from Exporters under Investment Treaties
- José Antonio Rivas, ICSID Treaty Counterclaims: Case Law and Treaty Evolution
- Nikolaos Tsolakidis, ICSID Annulment Standards: Who Has Finally Won the Reisman v. Broches Debate of Two Decades Ago?
- Mallory Silberman, ICSID Annulment Reform: Are We Looking at the Right Problem?
- Diego Brian Gosis, Addressing and Redressing Errors in ICSID Arbitration
- Christoph Schreuer, Do We Need Investment Arbitration?
New Issue: Netherlands Quarterly of Human Rights
- C. Flinterman, The United Nations Human Rights Committee: Some Reflections of a Former Member
- D. Cubie & M. Hesselman, Accountability for the Human Rights Implications of Natural Disasters: A Proposal for Systemic International Oversight
- M-T Gil-Bazo, The Safe Third Country Concept in International Agreements on Refugee Protection: Assessing State Practice
- A. Dyer, Freedom of Expression and the Advocacy of Violence: Which Test Should the European Court of Human Rights Adopt?
Jackson: Complicity in International Law
This book examines how international law prohibits state and individual complicity. Complicity is a derivative form of responsibility that links an accomplice to the wrongdoing of a principal actor. Whenever a legal system prohibits complicity, it must address certain questions as to the content and structure of the rules. To understand how international law answers these questions, this book proposes an analytical framework in which complicity rules may be assessed and defends a normative claim as to how they should be structured.
Anchored by this framework and normative claim, this book shows that international criminal law regulates individual complicity in a comprehensive way, using the doctrines of instigation and aiding and abetting to inculpate complicit participants in international crimes. By contrast, international law's regulation of state complicity was historically marked by an absence of complicity rules. This is changing. In respect of state complicity in the wrongdoing of another state, international law now imposes both specific and general complicity obligations, the latter prohibiting states from aiding or assisting another state in the commission of any internationally wrongful act. In respect of the ways that states participate in harms caused by non-state actors, the traditional normative structure of international law, which imposed obligations only on states, foreclosed the possibility of prohibiting the state's participation as a form of complicity. As that traditional normative structure has evolved, so the possibility of holding states responsible for complicity in the wrongdoing of non-state actors has emerged.
Call for Papers: Public Law in an Uncertain World
CALL FOR PAPERS AND PANELS
“PUBLIC LAW IN AN UNCERTAIN WORLD”
ICON-S invites submissions for papers and fully-formed panels for its 2015 Conference on “Public Law in an Uncertain World”.
The Conference will take place in New York City, on July 1-3, 2015, at the New York University School of Law.
The Conference will feature a keynote address as well as three plenary sessions on the Conference theme. A provisional program can be found here. The heart of the Conference, however, will be the two days devoted to the papers and panels selected through this Call.
ICON-S welcomes both individual papers as well as proposals for fully-formed panels. Panel proposals should include at least 3 papers by scholars who have agreed in advance to participate and should identify one or two discussants, who may also be paper presenters. Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will last 1 hour and 30 minutes.
The plenary sessions are not intended to limit the subject-matter scope of individual paper submissions and fully-formed panel proposals. Paper and panel proposals may focus on any theoretical, historical, comparative, empirical, doctrinal, philosophical or practical perspective related broadly to public law, including administrative law, constitutional law, criminal law, or international law in all of their possible domestic, transnational, supranational, international and global variants related to the 2015 Conference theme. The purpose of this conference is to explore and evaluate the function and limits of public law in our uncertain world in relation to war and peace, human rights, religion, state-building, constitution-making, formal and informal institutional change, revolutionary movements, national security as well as but not limited to the economy, the environment and the challenge of new technologies.
We invite potential participants to refer to the ICON-S Mission Statement when choosing a topic.
ICON-S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer a genuine multi-disciplinary perspective from various areas of law (including civil, commercial, criminal, tax, and labor law), as well as from scholars from the humanities and the social sciences with an interest in the study of public law and (un)certainty.
We welcome submissions from both senior and junior scholars (including advanced Ph.D. students) as well as practitioners.
All submissions must be made on the ICON-S website by April 10, 2015. Successful applicants will be notified by May 1, 2015.
All participants will be responsible for their travel and accommodation expenses.
New Issue: Schweizerische Zeitschrift für internationales und europäisches Recht
- Daniel Girsberger, Die Haager Prinzipien über die Rechtswahl in internationalen kommerziellen Verträgen
- Andreas Bucher, L’immunité de l’Etat confronté à ses crimes
- Thomas Kadner Graziano, La comparaison judiciaire – Légitime, utile, praticable ?
- Bernard Dutoit, Le droit international privé russe revisité
Monday, March 16, 2015
Call for Papers: AjV Workshop
Einladung zum AjV-Workshop in Hamburg, 25.-27.09.2015
Wir laden euch, liebe AjVler, zu einem informellen Workshop ein (vergesst nicht den Workshop zu “International Law and Domestic Law-Making Processes” am 4. September in Basel). Vom 25.-27. September 2015 wollen wir mit euch über eure Forschungsprojekte (Kapitel der Dissertation, Artikelideen, Urteilsbesprechungen etc.) in Hamburg diskutieren. In ungezwungener Runde seid ihr eingeladen, eure Ideen zur Diskussion zu stellen und zu überprüfen. Doktorand*innen und Habilitand*innen unterschiedlicher völkerrechtlicher Disziplinen sollen durch einen freien Austausch einander inspirieren und sich gegenseitig voranbringen. Das Völkerrecht und der gesunde Menschenverstand bilden die gemeinsame Basis, aufgrund derer parallele Entwicklungen und Inhalte in anderen Teildisziplinen aufgezeigt und für die eigene Forschung fruchtbar gemacht werden können. Nur das Hinterfragen auch scheinbar klarer Argumentationsstränge bringt Erkenntnisfortschritt. Wir werden aber nicht nur den wissenschaftlichen Austausch fördern, sondern auch das gesellige Beisammensein mit einem Begleitprogramm unterstützen. Stellt uns bitte bis zum 31. Mai 2015 eure Vortragsideen auf Deutsch oder auf Englisch in 300-500 Wörtern vor (E-Mail an email@example.com). Auch eine Teilnahme ohne Vortrag ist möglich, Details dazu folgen noch.
Wir freuen uns auf euch!
Anne Dienelt und Katrin Kohoutek
Conference: Cambridge Journal of International and Comparative Law Fourth Annual Conference
Ohlin: The Doctrine of Legitimate Defense
The following article reorients mainstream conceptions of self-defense by defending a broader doctrine of legitimate defense that, in limited circumstances, justifies unilateral intervention. The source of the doctrine is natural law, which was explicitly incorporated into the text of UN Charter article 51. The effect of this incorporation was to preserve, as a carve-out from the prohibition against force in Article 2, the natural law rights of defensive force. Specifically, the Article concludes that defensive force under natural law included, in extreme situations, a right of intervention in rogue States that refused to comply with natural law. The Article then provides a normative foundation for the doctrine of legitimate defense by showing how the right of self-determination, the right to be free from genocide, and the right to self-defense, all flow from a more primary right to exist that applies to nations and peoples. Finally, drawing on earlier work published with George Fletcher, the Article explains how a national group’s right of self-defense can trigger a third party’s right to intervene on its behalf. This reading of Article 51 shows how its explicit incorporation of natural law and its textual reference to “legitimate defense” provides the conceptual ground for a modern doctrine of humanitarian intervention. However, unlike other legal justifications for humanitarian intervention that are framed as "exceptions" to article 51, the doctrine of legitimate defense is based on a textual interpretation of that provision.
New Issue: Asian Journal of WTO & International Health Law and Policy
- Re-invigorating a Momentum for WTO Negotiations after Bali Conference
- Valerie Hughes, Food for Thought: The Bali Package and WTO Dispute Settlement Post-Bali
- Margaret Liang, The International Trading System Post-Bali: The Need for a New Paradigm
- Dukgeun Ahn, Systemic Issues for the Post MC-9 WTO System
- Lias Toohey, Reinvigorating the WTO from the Inside Out - Revisiting the Role of the Secretariat
- Chang-Fa Lo, The Role of Dispute Settlement Mechanism in Facilitating Multilateral Trade Negotiations
- Deborah Elms, After Bali: What Happens Next with Asian Trade Facilitation
- Heng Wang, The Agreement on Trade Facilitation and Its Implications: An Interpretative Perspective
- Jaemin Lee, Looking for a Panacea in the SCM Agreement-Systemic Challenges for Post-Bail Fisheries Subsidies Discussion and Some Food for Thought to Overcome Them
Franck: Conflating Politics and Development? Examining Investment Treaty Arbitration Outcomes
International dispute settlement is an area of ongoing evaluation and tension within the international political economy. As states continue their negotiations for the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), the efficacy of international arbitration as a method of dispute settlement remains controversial. Whereas some sing its praises as a method of protecting private property interests against improper government interference, others decry investment treaty arbitration (ITA) as biased against states. The literature has thus far not disentangled how politics and development contribute to investment dispute outcomes. In an effort to control for the effect of internal state politics, this Article offers the first analysis of ITA outcomes, focusing on respondent states’ development status while simultaneously controlling for states’ democracy levels. Using a dataset of 159 final ITA awards from prior to January 2012, the Article conducts quantitative analyses of outcomes as a function of raw wins and losses, amounts awarded, and relative investor success. Initially, when evaluating outcomes based on a respondent state’s membership in the Organisation for Economic Cooperation and Development (OECD) or a state’s score on the UN Development Programme (UNDP) Human Development Index, it was not possible to identify a reliable link to outcomes. Only defining a respondent’s development status using a World Bank classification generated reliable differences for Upper-Middle income states, and only for two measures of outcome — namely raw wins and amounts awarded. Using the World Bank measure, there was no statistically significant relationship with relative investor success. None of these analyses, however, controlled for the level of internal state democracy to identify how democracy levels, which can reflect good governance infrastructure, might contribute to outcomes. After controlling for the effect of a state’s internal democracy levels, twelve analyses were unable to identify a reliable link with ITA outcomes and development status irrespective of how development status was defined. While the Article cannot conclusively exclude the possibility of systemic bias in ITA against the developing world, it provides additional evidence suggesting the potential absence of such bias or the importance of alternative explanatory variables. The results also suggest that focusing on development status alone may be unwarranted, and future research should explore internal levels of democracy or other indicators of good governance, which could be associated with the decreased risk of a state loss. The Article concludes that normative choices focused solely on respondent state development status miss an opportunity to craft normative solutions tailored to redress tangible problems. By focusing on variables that demonstrably contribute to variance in ITA outcomes, stakeholders could construct more appropriate international dispute settlement processes in a time of international economic transition.
Sunday, March 15, 2015
New Issue: Global Trade and Customs Journal
- Patricio Diaz Gavier, The Confiscation by Equivalent in Customs Matters in Belgium
- Richard Tauwhare, Herding Smart Cats: Applying Export Controls on Intangible Transfers of Technology in UK Universities
- Nellie Munin, Can a Gender-Sensitive Approach to WTO Regulation Enhance Women’s Contribution to the Global Economy?
- Sara Núñez Évora, The WTO Legality of the Withdrawal of Tariff Preferences Based on Human Rights Violations: The Case of the EU GSP in Cambodia