Saturday, April 25, 2015
Nadakavukaren Schefer: The European Court of Justice Rules on Obesity Discrimination
Rachovitsa: Fragmentation of International Law Revisited
This Article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court’s case law provides insights and good practices to be followed. First, the Article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, the Article offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. The analysis explores the Court’s approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31 (3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based in the letter of the VCLT.
Friday, April 24, 2015
New Issue: Questions of International Law
- The role of experts before the International Court of Justice: The Whaling in the Antarctic case
- Introduced by Chiara Ragni
- Makane Mbengue, The Role of Experts Before the International Court of Justice: The Whaling in the Antarctic Case
- Tullio Scovazzi, Between law and science: Some considerations inspired by the Whaling in the Antarctic judgment
Conference: International Law and Time
Time is an inherent component of many of the most important international law concepts. However, it also fundamentally determines international law as a field. International law has been in constant dynamic change since its inception. Capturing and understanding this change in time is one of the discipline’s fundamental challenges, as is the difficulty of working with the constantly changing materiae of international law in practice.
Thursday, April 23, 2015
New Issue: The Law and Practice of International Courts and Tribunals
- Giorgio Gaja, Requesting the ICJ to Revoke or Modify Provisional Measures
- The Contribution of Courts and Tribunals to the Development of International Law
- Maurizio Arcari, Enrico Milano & Attila Tanzi, Introduction
- Robert Kolb, The Jurisprudence of the Permanent Court of International Justice Between Utilitas Publica and Utilitas Singulorum
- Jochen von Bernstorff, Hans Kelsen on Judicial Law-Making by International Courts and Tribunals: A Theory of Global Judicial Imperialism?
- Christian J. Tams, Meta-Custom and the Court: A Study in Judicial Law-Making
- Micaela Frulli, The Contribution of International Criminal Tribunals to the Development of International Law: The Prominence of opinio juris and the Moralization of Customary Law
- Stephan W. Schill & Katrine R. Tvede, Mainstreaming Investment Treaty Jurisprudence
- Francesco Seatzu, The Treatment of International Law in the Jurisprudence of the World Bank Administrative Tribunal
- Peter Bachmayer & August Reinisch, The Role of Judges at Austrian Courts in the Development of International Law
Boer: Environmental Law Dimensions of Human Rights
- Ben Boer, Introduction
- Natasha Affolder, Square Pegs and Round Holes? Environmental Rights and the Private Sector
- Elisa Morgera, Benefit-Sharing as a Bridge between the Environmental and Human Rights Accountability of Multinational Corporations
- Riccardo Pavoni, Environmental Jurisprudence of the European and Inter-American Courts of Human Rights: Comparative Insights
- Ludwig Kramer, Access to Environmental Justice in the European Courts
- Ben Boer, Environmental and Human Rights in the Asia-Pacific
- Stefan Gruber, Human Displacement and Climate Change in the Asia-Pacific
- Alan Boyle, Human Rights and the Environment: Where Next?
de la Rasilla del Moral: The Shifting Origins of International Law
Both state-centrism and Euro-centrism are under challenge in international law today and this double challenge, this work argues, is being fruitfully mirrored back into the study of the history of international law. It examines, in the first section, the effects of the rise of positivism as a method of norm-identification and the role of methodological nationalism over the study of the history of international law in the modern foundational period of international law. This is extended by an examination of how this bequeathed a double exclusionary bias regarding time and space to the study of the history of international law as well as a reiterative focus on a series of canonical events and authors to the exclusion of others such as those related to the Islamic history of international law. In the second section, the analysis turns to address why this state of historiographical affairs is changing, specifically highlighting intra-disciplinary developments within the field of the history of international law and the effects that the “international turn in the writing of history” is having on the writing of a new history of international law for a global age. The conclusion reflects on some of the tasks ahead by providing a series of historiographical signposts for the history of international law as a field of new research.
Benvenisti & Harel: Embracing the Tension between National and International Human Rights Law
Individual rights are secured by at least two legal sources: constitutional law and international law. The co-existence of constitutional and international law norms is inevitably a source of conflict: When there is a conflict between a constitutional provision and an international law provision, which (if any) provision should have the upper hand?
Theorists thus far have argued for (and assumed the necessity of) a clear hierarchy between constitutional and international law. This Article argues that the conviction that one system of norms is superior to the other is false. Instead we embrace competition between constitutional and international norms, what we call the "discordant parity hypothesis." It is the persistent tension and conflict between the two systems of norms that is necessary for recognizing and ensuring individual freedom.
To establish the discordant parity hypothesis, we explore the best possible arguments for both the internationalists’ and for constitutionalists’ positions. We suggest that the argument supporting the overriding power of international law norms is the recognition of the state's duty to protect rights, rather than merely a discretionary gesture on its part. The overriding power of constitutional norms stems from its promise to individuals of being the masters of their destiny. We believe that both claims are equally convincing. Instead of trying to establish hierarchy between the claims, we embrace their equal standing and the ensuing conflict between them. We believe that constant tensions and conflicts between international norms and state norms is ideally suited to ensure individual liberty.
Totani: Justice in Asia and the Pacific Region, 1945–1952
This book explores a cross-section of war crimes trials that the Allied powers held against the Japanese in the aftermath of World War II. More than 2,240 trials against some 5,700 suspected war criminals were carried out at 51 separate locations across the Asia Pacific region. This book analyzes fourteen high-profile American, Australian, British, and Philippine trials, including the two subsequent proceedings at Tokyo and the Yamashita trial. By delving into a large body of hitherto underutilized oral and documentary history of the war as contained in the trial records, Yuma Totani illuminates diverse firsthand accounts of the war that were offered by former Japanese and Allied combatants, prisoners of war, and the civilian population. Furthermore, the author makes a systematic inquiry into select trials to shed light on a highly complex - and at times contradictory - legal and jurisprudential legacy of Allied war crimes prosecutions.
Wednesday, April 22, 2015
Oxford Public International Law Discussion Group - Trinity Term 2015
- April 30, 2015: Jessica Gladstone (Debevoise & Plimpton LLP), Disputes with States: Policies, Politics and the Rule of Law
- May 7, 2015: Sarah Nouwen (Univ. of Cambridge - Law), Complementarity in the line of fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan
- May 14, 2015: Surya Subedi (Univ. of Leeds - Law; UN Special Rapporteur for Human Rights in Cambodia), The UN Human Rights Special Rapporteurs and the Impact of their Work: Some Reflections of the Longest Serving UN Special Rapporteur for Cambodia
- May 21, 2015: Charlotte Peevers (Univ. of Technology, Sydney - Law), The politics of justifying force and the Chilcot inquiry: revealing the 'inner life' of international law
Clapham: Human Rights and International Criminal Law
Although one might see international criminal law as a natural progression of human rights law, this chapter points to the tensions between the two branches and warns against conflating human rights with atrocity crimes.
Cottier: Equitable Principles of Maritime Boundary Delimitation
Equity emerged as a powerful symbol of aspired redistribution in international relations. Operationally, it has had limited impact in the Westphalian system of nation states - except for maritime boundary delimitations. This book deals with the role of equity in international law, and offers a detailed case study on maritime boundary delimitation in the context of the enclosure movement in the law of the sea. It assesses treaty law and the impact of the United Nations Convention on the Law of the Sea. It depicts the process of trial and error in the extensive case law of the International Court of Justice and arbitral tribunals and expounds the underlying principles and factors informing the methodology both in adjudication and negotiations. Unlike other books, the main focus is on equity and its implications for legal methodology, in particular offering further guidance in the field of international economic law.
Weitz: Self-Determination: How a German Enlightenment Idea Became the Slogan of National Liberation and a Human Right
No phrase has had greater political resonance in the last one hundred years than “self-determination.” As Eric D. Weitz notes in “Self-Determination: How a German Enlightenment Idea Became the Slogan of National Liberation and a Human Right,” since the 1940s it has become the favored slogan of nationalist and anticolonial movements around the globe, written into virtually every major human rights declaration. In its origins, however, self-determination was an Enlightenment concept relating to individuals. From the late eighteenth century to World War I, it evolved from a primarily individualist into a collectivist doctrine. Weitz tracks this dramatic, often unnoticed transformation, untangling the diverse meanings of self-determination to examine the dilemmas intrinsic to the history of human rights, notably the tension between individual and collective rights. He provides an account of the different meanings of self-determination to the socialist movement of the nineteenth century, beginning with its major Enlightenment proponent, Johann Gottlieb Fichte, as well as to its many advocates in the twentieth. As self-determination became a doctrine related to national or racial belonging, it lost much of its Enlightenment meaning as a concept fundamental to individual self-constitution and emancipation. Self-determination's twentieth-century proponents argued that individual rights flowed naturally and smoothly from national liberation, but the same doctrine that underpinned the emancipation of the national or racial elect could justify the brutal exclusion of others.
Stark: International Law and its Discontents: Confronting Crises
- Ileana Porras, Binge development in the age of fear: scarcity, consumption, inequality and the environmental crisis
- Karin Mickelson, International law as a war against nature?
- Dianne Otto, Decoding crisis in international law: a queer feminist perspective
- Barbara Stark, The incredible shrinking women
- Dan Danielsen, Corporate power and instrumental states: toward a critical reassessment of the role of firms, states and regulation in global governance
- Andrew Strauss, Global economic inequality and the potential for global democracy: a functionalist analysis
- Brad Roth & Sharon F. Lean, A Bolivarian alternative? The new Latin American populism confronts the global order
- Jeanne Woods, Global crises and the law of war
Tuesday, April 21, 2015
New Issue: Manchester Journal of International Economic Law
- Manjiao Chi, Resource Sovereignty in the WTO Dispute Settlement: Implications of China - Raw Materials and China - Rare Earths
- Michelle Q Zang, The Uncompleted Mission of China - Electronic Payment Services: Policy Equilibrium between Market Access
- Saloni Khanderia-Yadav, Implications of the World Trade Organization's Agreement on Trade Facilitation for Emerging Economics:
- Bregt Natens & Dylan Geraets, Modification of the Conditions of Competition for Goods and Services: The Side-track that Never Was
- Derek Zhaoke Zhu, International Investment Agreement among China, Japan and Korea: From 'Bilateral' to 'Trilateral' - the Way toward ad Better Protection for Foreign Investors
New Issue: Michigan Journal of International Law
- J. Clifton Fleming, Jr., Robert J. Peroni & Stephen E. Shay, Formulary Apportionment in the US International Tax System: Putting Lipstick on a Pig?
- Matthew C. Turk, Reframing International Financial Regulation After the Global Financial Crisis: Rational States and Interdependence, Not Regulatory Networks and Soft Law
- Vassilis P. Tzevelekos, Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility
New Issue: Columbia Journal of Transnational Law
- Thomas Gammeltoft-Hansen & James C. Hathaway, Non-Refoulement in a World of Cooperative Deterrence
- Stephen Gardbaum, Are Strong Constitutional Courts Always a Good Thing for New Democracies?
- Nick Robinson, Closing the Implementation Gap: Grievance Redress and India’s Social Welfare Programs
New Issue: La Comunità Internazionale
- Giovan Battista Verderame, Il discorso del Presidente egiziano Al Sisi all’Università Al-Azhar de Il Cairo e il terrorismo islamista: è inevitabile lo “scontro di civiltà”?
- Articoli e Saggi
- Attila Tanzi, Un difficile dialogo tra Corte Internazionale di Giustizia e Corte Costituzionale
- Osservatorio Diritti Umani
- Luigia Bersani, La dimensione umana del patrimonio culturale nel diritto internazionale: identità e diritti culturali
- Osservatorio Europeo
- Federico Di Dario, Prime riflessioni sulla Transatlantic Trade and Investment Partnership (TTIP)
- Luigi D’Ettorre, I partiti politici europei: una ricostruzione del quadro normativo
Call for Submissions: The Latin American Challenge of the Current System of Investor-State Dispute Settlement
CALL FOR PAPERS
Journal of World Investment & Trade
Special Issue on
The Latin American Challenge to the
Current System of Investor-State Dispute Settlement
Edited by Dr Katia Fach and Dr Catharine Titi
(JWI&T Editor-in-Chief: Dr Stephan Schill)
Since the time that the Calvo doctrine held sway, Latin America’s ambivalent relationship to investor-state dispute settlement has not ceased to elicit discussions and debates and generate a string of scholarly writings. Recently the region’s multiple responses to investment arbitrations, termination of a number of investment treaties and, in the case of three countries, denunciation of the Convention of the International Centre for Settlement of Investment Disputes have continued to fuel the debate. And the latter is on the point of taking yet a new turn. In November 2014, the Working Group on Responsible Dispute Investment Settlement of the Union of South American Nations (UNASUR) settled on a constitutive treaty that, if successful, will create Latin America’s own dispute resolution centre for investment disputes. The provisionally called UNASUR Centro de solución de controversias en materia de inversiones (UNASUR Investment Arbitration Centre) brings together the twelve UNASUR member states (Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay, and Venezuela) and the Working Group aspires to have it operational in the next couple of years. More recently, in March and April 2015, Brazil, the region’s biggest economy, concluded its two first cooperation and facilitation investment agreements (CFIA), investment treaties of a sui generis kind, that focus on investment facilitation and dispute prevention and bar access to investor-state dispute settlement.
These and other innovative features of the Latin American take on investment arbitration raise numerous questions and challenges for the region but also for the entire system of international investment protections. The Special Issue of the Journal of World Investment & Trade will aim to deal with some of the themes relating to the creation of the Centre and these other innovative aspects of the current and future Latin American approach to the reform of investment dispute settlement. The following are just some topics that the Special Issue will aim to address:
A new investment arbitration system in the offing. The UNASUR Investment Arbitration Centre aims to establish an arbitration procedure with nuclear differences from investment arbitration system as we know it – e.g. reinforcement of transparency of proceedings; increased respect for States’ sovereign rights; strict controls regarding arbitrator conduct and neutrality; establishment of an appeals mechanism with a system of precedent. Although traditional institutions of investment arbitration will not be taken as a reference, newer trends that are being sketched in new generation investment agreements outside Latin America may be taken into account. Simultaneously, the Special Issue will explore how to reconcile the functioning of the UNASUR Centre with the investment framework previously set in place by UNASUR members – e.g., BITs, treaties, national laws or contracts giving access to investment arbitration. Attention will also be given to the UNASUR Centre’s relationship with other pre-existing regional institutions that have the legal power to resolve investment disputes in Latin America. Additionally, the relationship between the UNASUR Centre and national courts is a crucial facet for the strengthening of the new Centre worldwide.
Scepticism vis-à-vis the UNASUR Centre. The Special Issue will also examine the scepticism that the UNASUR Centre has generated among various foreign legal commentators. It is feared that its operation will scorn international standards in favour of regional ones, which could lead to increased instability in the region and to investment and welfare decrease. An interesting sub-facet of this issue is the negative reaction that the UNASUR Centre has created amongst Latin American scholars and public authorities in ‘ICSID-friendly’ countries in the region. From a more general approach, the Special Issue will also reflect on the perspectives of success of this innovative project and also on the legal and socio-political factors that may influence the Centre’s success or failure.
UNASUR Centre and other regional initiatives. The Special Issue is interested in parallels that can be drawn between the prospective UNASUR Centre and other regional projects, e.g. in Asia or Africa, but also in Latin America. Many initiatives are undertaken, a few succeed – e.g. the Andean Community’s common regime on intellectual property – but many fail. The Special Issue will explore the lessons to be drawn from the success but also from the failure of regional projects and where the UNASUR Centre stands in this context. Another aspect of this question is how a regional arbitration centre may succeed in reforming investment arbitration while placed outside the traditional context (e.g. ICSID).
Novel Latin American approaches to investment dispute settlement. Besides the UNASUR Centre’s innovative suggestions for investment dispute resolution, the Special Issue is also keen on exploring other novel or ground-breaking aspects of Latin American investment arbitration. Improved institutional governance, thematic agendas and dispute prevention, as evidenced in the Brazilian model, are a first example. Peru’s State Coordination and Response System for International Investment Disputes (Sistema de de Coordinación y Respuesta del Estado en Controversias Internacionales de Inversión), an internal dispute management system and a special mechanism geared at avoiding investment treaty liability, is another. Additionally, participation of Latin American states in the Trans-Pacific Partnership Agreement constitutes a further element that can shape investment arbitration tendencies in the area. The Special Issue invites submissions especially focused on the systems and mechanisms, more than on individual countries.
Investment arbitration and the rule of law in Latin America. The UNASUR Working Group on Responsible Dispute Investment Settlement has recently stated that peace in this complex region requires not only the absence of armed conflicts, but also the ability to resolve economic disputes through legal and democratic means, maintaining ‘institutionalism’. Whereas investment tribunals will often lack jurisdiction to pronounce on issues relating to the general economic effects of national legislation and regulation, arbitral jurisprudence has conceptualised the fair and equitable treatment (FET) as a means of ensuring rule-of-law-like standards for foreign investors. Consolidation of the rule of law is also closely associated with the protection of human rights. The Special Issue will discuss the different legal tools that will be made available in investment dispute resolution in order to protect human rights in the region – e.g. amicus curiae, code of conduct for arbitrators, additional ADR mechanisms, ombudsmen. The analysis in this context will take into account the Inter-American Human Rights System and propose legal mechanisms of effective coordination.
Submission of proposals
The Journal of World Investment & Trade (JWIT) is a double-blind peer-reviewed journal that focuses on the legal aspects of foreign investment relations in a broad sense. This encompasses, among others, the law of bilateral, multilateral, regional and sectoral investment treaties, investor-state dispute settlement, and domestic law relating to foreign investment. The Journal is open to doctrinal analysis as well as theoretical, conceptual, and interdisciplinary approaches, including law and economics analysis, empirical analysis, historical analysis, political science analysis, or normative analysis.
The Special Issue ‘The Latin American Challenge to the Current System of Investor-State Dispute Settlement’ will use current developments and the proposed design of UNASUR’s investment dispute settlement centre, as an example of the Latin American ‘challenge’ to investment arbitration and place it within the wider context of reform of investor-state dispute settlement as evidenced elsewhere in the world. It will prioritise critical and theoretical (rather than descriptive) approaches that will guarantee a scientific interest in the volume long after its publication date.
The guest editors of this Journal of World Investment & Trade Special Issue are Katia Fach1 (University of Zaragoza, Spain) and Catharine Titi 2 (University PanthéonAssas, France).
Scholars, IIA negotiators and experienced practitioners are invited to submit cuttingedge proposals that go beyond the state of the law to this call for papers for the Journal of World Investment & Trade.
Extended abstracts – minimum of 1000 words – or unpublished full papers should be submitted to both editors (email@example.com and firstname.lastname@example.org), along with the author’s name, affiliation, a CV that includes a list of relevant publications, and the author’s contact details.
All submissions and finalised papers must be written in English. Submission for the Special Issue is incompatible with parallel submission to a different publication.
The deadline for the submission of proposals is 30 June 2015.
Successful applicants will be informed by 31 July 2015.
The deadline for the submission of the finalised papers for accepted proposals is 30 November 2015.
Intended publication is in the first half of 2016.
Finalised papers will be between 7,000-10,000 words (including footnotes) and must comply with the Journal of World Investment & Trade style guide which can be accessed here.
New Issue: Archiv des Völkerrechts
- Nora Markard, Das Recht auf Ausreise zur See: Rechtliche Grenzen der europäischen Migrationskontrolle durch Drittstaaten
- Ibrahim Kanalan, Extraterritoriale Staatenpflichten jenseits der Hoheitsgewalt: Ein neues Konzept für umfassende extraterritoriale Staatenpflichten
- Beiträge und Berichte
- Andreas Kulick, Estoppel im Völkerrecht – Antworten auf drei dogmatische Fragen
- Julia Richter, Soft Law als Brückenbauer zwischen Wirtschaft und dem Schutz der Gesundheit? Eine Analyse des Kodex für die Vermarktung von Muttermilchersatzprodukten
- Elisabeth Rossa, Ein Individualbeschwerderecht für Kinder
Monday, April 20, 2015
Conference: Spring Meeting of the ABA Section of International Law
Halliday & Shaffer: Transnational Legal Orders
- Terence Halliday & Gregory Shaffer, Transnational legal orders
- Susan Block-Lieb & Terrence Halliday, Settling in transnational legal orders: corporate bankruptcy law and international trade by sea
- Roderick Macdonald, When lenders have too much cash and borrowers have too little law: the emergence of secured-transactions transnational legal orders
- Philip Genschel & Thomas Rixen, Settling and unsettling the transnational legal order of international taxation
- Gregory Shaffer & Michael Waibel, The alignment of the transnational legal orders for monetary and trade law
- Eric Helleiner, The emergence and limits of the transnational financial legal order: regulating the regulators
- Tim Büthe, Institutionalization and its consequences: the TLO(s) for food safety
- Daniel Bodansky, Climate change: bottom-up evolution or international failure?
- Laurence Helfer, Pharmaceutical patents and the human right to health: the contested evolution of the transnational legal order on access to medicines
- Jothie Rajah, 'Rule of law' as transnational legal order
- Sally Merry, Firming up soft law: the impact of indicators on transnational human rights legal orders
- Paulette Lloyd & Beth Simmons, Framing and transnational legal organization: the case of human trafficking
- Leigh Payne, The justice paradox?: Transnational legal orders and accountability for past human rights violations
- Terence Halliday & Gregory Shaffer, Researching transnational legal orders
Waibel: Principles of Treaty Interpretation: Developed for and Applied by National Courts?
More than 40 years after the Vienna conference on the law of treaties codified principles of interpretation in the Vienna Convention on the Law of Treaties, their practical operation remains contested and in flux. Neither the ratification of the VCLT by many (though not all) states, nor the general recognition that Articles 31-33 represent customary international law, has resolved the debate over the ‘correct’ approach to interpreting treaties, and international law in general. Debates in international law over the ‘correct’ interpretative approach mirror similar debates in domestic legal systems.
Even though the VCLT’s role in treaty interpretation has been studied extensively, its use in how national courts interpret international law has received far less attention. This chapter examines whether the drafters of the VCLT drafted Articles 31-33 partly with national courts in mind, and how national courts in fact interpret treaties. In considering the practical application of the VCLT’s interpretive principles, the chapter largely leaves aside the normative question whether it is desirable for national courts to interpret treaties based on the VCLT, to the exclusion of domestic canons of interpretation.
Section II sets the scene for treaty interpretation by national courts. It looks at the development of interpretive principles, and asks whether national courts are among their intended users. Section III considers national judges as members of diverse epistemic communities that influence treaty interpretation and explores the value of the VCLT’s minimum harmonisation of interpretive methods, particularly for uniform, private law-making treaties. Section IV considers the doctrinal question of whether national courts are formally bound by the VCLT’s interpretive principles and the empirical question of whether they routinely apply the VCLT even in the absence of a formal legal obligation to interpret treaties in accordance with the VCLT. Section V examines the persistent tendency for national courts to deploy non-VCLT methodologies such as contract and statutory imagery in interpreting treaties.
Elias-Bursac: Translating Evidence and Interpreting Testimony at a War Crimes Tribunal
How can defendants be tried if they cannot understand the charges being raised against them? Can a witness testify if the judges and attorneys cannot understand what the witness is saying? Can a judge decide whether to convict or acquit if she or he cannot read the documentary evidence? The very viability of international criminal prosecution and adjudication hinges on the massive amounts of translation and interpreting that are required in order to run these lengthy, complex trials, and the procedures for handling the demands facing language services. This book explores the dynamic courtroom interactions in the International Criminal Tribunal for the Former Yugoslavia in which witnesses testify—through an interpreter—about translations, attorneys argue—through an interpreter—about translations and the interpreting, and judges adjudicate on the interpreted testimony and translated evidence.
Ohlin: The Crime of Bootstrapping
The following commentary offers a counter-intuitive explanation of the crime of aggression, its underlying moral rationale and its proper place within the general structure of the laws of war. Specifically, this essay concludes that aggression penalises States that attempt to bootstrap their way into the permissive legal regime of international humanitarian law (‘IHL’) – a legal regime that permits the wholesale killing of enemy combatants. Part B will explain why criminal law has generally penalised defendants who seek to create their own exonerating conditions, by applying a doctrine that criminal lawyers from civil law jurisdictions call actio libera in causa. The same intuitions apply in common law jurisdictions, though often without the same level of systematicity. Part C asks whether the same principle should apply in the laws of war; I answer in the affirmative. Specifically, the crime of aggression is an example of actio libera in causa because it penalises States that attempt to trigger the application of IHL that will legitimise widespread violence. For this reason we should dub aggression the ‘crime of bootstrapping’, a jus ad bellum framework to close what would otherwise constitute a moral paradox.
Part D takes the analysis one step further by emphasising the respective roles to which jus in bello and jus ad bellum are assigned in public international law; recent attempts to make IHL more restrictive are motivated by the relative paucity of jus ad bellum constraints on State behaviour. This situation can only be cured once the crime of aggression becomes fully operational at the International Criminal Court (‘Court’). Part E discusses two operational obstacles to prosecuting aggression before the Court. The first involves uncertainty over how it would apply to democratic regimes where political control over war-making is vested in a corporate body like a parliament. The second involves uncertainty over the required mental state, and whether politicians should be convicted for foreseeing that military action might become an act of aggression.
Sunday, April 19, 2015
Workshop: Constructive Links or Dangerous Liaisons? The Case of Public International Law and European Union Law
After an introductory roundtable discussion held in October 2014 on the general aspects of the relationship between EU law and PIL to set the scene, the project 'Beyond Pluralism? Co-Implication, Embeddedness and Interdependency between Public International Law and EU Law' opened in medias res, analysing specific legal areas from the viewpoint of both the EU and PIL in a series of ‘thematic dialogues’ (on monetary policy, energy & environmental law, human rights, crime, justice & terrorism, and common foreign & security policy), taking place from October 2014 to March 2015. An inductive methodology has been followed, based on direct observation of the respective thematic field, intended to allow contributors to draw conclusions on the actual processes of reception, compliance and/or contestation between the EU and international legal orders on that basis. This concluding two-day workshop will serve to put findings into perspective, reflect upon them and consider how best to articulate the link between the two regimes, possibly re-defining their relationship and offering a comprehensive account of their interaction, overcoming the limitations of monist, dualist and pluralist approaches.