This paper focuses on other international instruments as an argument for dynamic (evolutive) interpretation of the European Convention on Human Rights (ECHR). I claim that the European Court of Human Rights (ECtHR) goes beyond using other international legal instruments as inspiration and also beyond the Vienna Convention on the Law of Treaties article 31 (3) (b) and (c) in its use of other international instruments as guidance in its evolutive interpretation of the ECHR. The Court’s evolutive interpretation should rather be based on the ECHR’s object and purpose. By using other international instruments in its evolutive interpretation, the Court can assert that it relies on certain objective standards rather than only on its own subjective preferences.
Saturday, June 20, 2015
Friday, June 19, 2015
- Gary Born, "BITs, BATs, and Buts: Reflections on International Dispute Resolution," University of Nottingham School of Law, March 25, 2015
- Daniëlla Dam-de Jong, Armed Opposition Groups and the Right to Exercise Control over Public Natural Resources: A Legal Analysis of the Cases of Libya and Syria
- Etienne Ruvebana & Marcel Brus, Before It’s Too Late: Preventing Genocide by Holding the Territorial State Responsible for Not Taking Preventive Action
- Shared Responsibility and Organised Non-State Actors
- Jean d’Aspremont, André Nollkaemper, Ilias Plakokefalos, & Cedric Ryngaert, Sharing Responsibility Between Non-State Actors and States in International Law: Introduction
- Veronika Bílková, Armed Opposition Groups and Shared Responsibility
- Markos Karavias, Shared Responsibility and Multinational Enterprises
- Sorcha MacLeod, Private Security Companies and Shared Responsibility: The Turn to Multistakeholder Standard-Setting and Monitoring through Self-Regulation-‘Plus’
- Kimberley N. Trapp, Shared Responsibility and Non-State Terrorist Actors
- The Hague Child Abduction Convention
- Tatsushi Nishioka & Takako Tsujisaka, Introductory Note: Japan's Conclusion of the Hague Convention on the Civil Aspect of International Child Abduction
- Masayuki Tanamura, International Child Abduction Cases and the Act for the Implementation of the Hague Convention - Impact on Domestic Cases and Family Law
- Masako Murakami, Case Proceedings for the Return of an Abducted Child and the Compulsory Execution in Japan
- Martina Erb-Klünemann, The 1980 Hague Convention and Mediation - A German Perspective
- Nigel Vaughan Lowe, Return Orders under the 1980 Hague Convention on the Civil Aspects of International Child Abduction - The Issues Facing the Japanese Courts
- The role of prominent jurists in Japan's engagement with International Law, 1853-1945: Part Two
- Okubo Takeharu, Nishi Amane and International Law - A Pioneer's Struggle with European Jurisprudence in Early Modern Japan
- Urs Matthias Zachmann, Taoka Ryoichi's Contribution to International Legal Studies in Pre-war Japan: With Special Reference to Questions of the Law of War
- Redefining the theoretical grounds for the collaboration between Public Law and Private Law in the era of Globalization
- Yuki Asano, From the Theory of Private Law to Legal Pluralism: On the Reconstruction of Private Law in the Age of Globalization
- Dai Yokomizo, Conflict of Law in the Era of Globalization
- Takeshi Fujitani, The Law, Governance, and Society in the Context of Globalization - Renewed Formation of the Law and Sovereign States
- Hiroki Harada, Establishing Partnership between Public and Private Law in Globalized Policy-Making and Enforcement Processes: A Focus on Social Security Law
- Nasu Kosuke, Does the Concept of Law Need to Be Revised in the Face of Globalization?
- Public International Law
- Maki Nishiumi, The Cultural Aspects of Sustainable Development
- Tatsuya Abe, Effectiveness of the Institutional Approach to an Alleged Violation of International Law: The Case of Syrian Chemical Weapons
- Tomoaki Ishigaki, Defining the Future by Studying the Past: A Negotiator's Perspective on the Arms Trade Treaty
- Dossier. Les tecniques conventionnelles du droit international des investissements
- Alain Nouvel, Classification cursive des règles de fond issues des traités bilatéraux d'investissements
- Geoffroy Lyonnet, La clause de la nation la plus favorisée en droit des Investissements: bilan et perspectives. Invitation à la prudence
- Thierry Lauriol, Le traitement national
- Carlo Santulli, Le traitement juste el équitable: stipulation particulière ou principe général de bonne conduite?
- Geneviève Bastid Burdeau, La clause de protection et de sécurité pleine et entière
- Walid Ben Hamida, La clause de couverture (dite "umbrella clause")
- Franck Latty, Discrète mais envahissante: la clause de libre exploitation
- Michael Ostrove, La clause relative à l'expropriation. L'imbrication du concept d'attentes légitimes dans la notion d'expropriation indirecte
- Arnaud de Nanteuil, La clause d'indemnisation
- José Martín y Pérez de Nanclares, La Ley de tratados y otros acuerdos internacionales : una nueva regulación para disciplinar una práctica internacional difícil de ignorar
- Felipe Gómez Isa, Los ataques armados con drones en el Derecho internacional
- Carlos Espaliú Berdud, El jus cogens, ¿salió del garaje?
- María Julià Barceló, El factor tiempo en el proceso de planificación, creación y despliegue de las misiones de paz de la Unión Europea
- María Cervera Vallterra, Avances y mejoras del marco normativo para la asistencia y protección de los desplazados internos en África
Thursday, June 18, 2015
Jayakumar, Koh, Beckman, & Phan: Transboundary Pollution: Evolving Issues of International Law and Policy
- S. Jayakumar, Tommy Koh, Robert Beckman & Hao Duy Phan, Introduction
- Catherine Redgwell, Transboundary pollution: principles, policy and practice
- Simon Tay, Transboundary pollution in a global economy: general principles and problems in practice
- Jacqueline Peel, Unpacking the elements of a state responsibility claim for transboundary pollution
- Stephen C. McCaffrey, Pollution of shared freshwater resources in international law
- Lan Hua, Environmental impact assessment in preventing transboundary river pollution under international law: an analysis
- Robert Beckman, State responsibility and transboundary marine pollution
- Youna Lyons, Transboundary pollution from offshore activities: a study of the Montara offshore oil spill
- Günther Handl, Preventing transboundary nuclear pollution: a post-Fukushima legal perspective
- Alan Boyle, Transboundary air pollution: a tale of two paradigms
- Hans Christian Bugge, The principle and duty to cooperate: the case of conventions on transboundary pollution in Europe
- Laode M. Syarif, Evaluating the (in)effectiveness of ASEAN cooperation against transboundary air pollution
- Alan Khee-Jin Tan, ‘Can’t we even share our maps?’: Cooperative and unilateral mechanisms to combat forest fires and transboundary ‘haze’ in Southeast Asia
- Nicholas A. Robinson, Legal redress of transboundary air pollution through environmental cooperation
- Conor Keane & Glenn Diesen, Divided We Stand: The US Foreign Policy Bureaucracy and Nation-Building in Afghanistan
- Bülent Aras & Pinar Akpinar, The Role of Humanitarian NGOs in Turkey's Peacebuilding
- Danielle Murdoch, Corrections Reform in Kosovo: A Qualitative Study of Canadian Corrections Advisers’ Experiences in a Post-Conflict Environment
While international investment law is one of the most dynamic and thriving fields of international law, it is increasingly criticized for failing to strike a fair balance between private property rights and the public interest. Proportionality is a tool to resolve conflicts between competing rights and interests. This book assesses its current role, its potential, and its limits in investor-State arbitration.
Proportionality is often lauded for reconciling colliding interests. This book identifies three factors arbitrators should consider before engaging in a proportionality analysis: the rule of law, the risk of judicial law-making, and the availability of a value system that guides the proportionality analysis. Apart from making suggestions when arbitrators should apply proportionality and when not to, the book outlines what States can do to recalibrate the balance between private property rights and the public interest if they wish to do so without dismantling the current system of investor-State arbitration.
Proportionality in Investor-State Arbitration considers whether and to what extent the notion of general principles of law within the meaning of Article 38(1)(c) of the ICJ Statute and the concept of systemic integration enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties provides a valid legal foundation for applying proportionality in investor-State arbitration.
- Part I: The Law and Practice of the United Nations
- Martin Wählisch, Human Security: Concept and Evolution in the United Nations
- Ezequiel Heffes, Marcos D. Kotlik & Brian E. Frenkel, Addressing Armed Opposition Groups through Security Council Resolutions: A New Paradigm?
- Lance Bartholomeusz, The Legal Framework for Protection of United Nations Humanitarian Premises during Armed Conflict
- Frédérique Lozanorios, Responsibility of the United Nations for Wrongful Acts Occurred in the Framework of Authorized Operations in Light of the Draft Articles on the Responsibility of International Organizations (DARIO)
- Jessica Pressler, Responsibility of the United Nations for the Activities of Private Military and Security Companies in Peacekeeping Operations: In Need of a New International Instrument
- Eric De Brabandere, UN Post-Conflict Peacebuilding Activities – An Economic Reconstruction Perspective
- Shane Chalmers & Jeremy Farrall, Securing the Rule of Law through UN Peace Operations in Liberia
- Edith Wagner, The Rule of Law and Its Application to the United Nations: Conference Report
- Ronald Janse, The UNGA Resolutions on the Rule of Law at the National and International Levels, 2006–Post 2015 Astrid Wiik & Frauke Lachenmann, Rule of Law and the Sustainable Development Goals
- Fruzsina Molnár-Gábor, The Ethical Mandate of UNESCO
- Robin Geiß & Daniel Wisehart, ‘Concerned with the Health and Welfare of Mankind …’: The UN Drug Conventions – A Suitable Legal Framework for the 21st Century?
- Pia Acconci, The Reaction to the Ebola Epidemic within the United Nations Framework: What Next for the World Health Organization?
- Part II: Legal Issues Related to the Goals of the United Nations
- Sophie Fink, Judicial Control of Targeted Sanctions by the European Court of Justice
- Mindia Vashakmadze, Legality of Foreign Military Intervention in International Law: Four Case Studies
- Elisa Freiburg, Land Grabbing as a Threat to the Right to Self-Determination: How Permanent Sovereignty over Natural Resources Limits States’ Involvement in Large-Scale Transfers of Land
- Hermann-Josef Blanke & Yasser Abdelrehim, Catalonia and the Right to Self-Determination from the Perspective of International Law
- Lutz Leisering, Benjamin Davy & Ulrike Davy, The Politics of Recognition: Changing Understandings of Human Rights, Social Development and Land Rights as Normative Foundation of Global Social Policy
- Part III: Report on Key Legal Developments at the United Nations in 2014
- Maximilian Spohr & Tilmann J. Röder, Key Legal and Political Developments at the United Nations in 2014
- Jaroslav Valerievich Antonov, Legal Issues in Electronic Procurement and International Transportation
- Alexander J. Bělohlávek, Law Applicable to International Carriage: EU Law and International Treaties
- Jiří Horník, Saving National Airlines?
- Aleksandra Sergeevna Kasatkina, A Сarrier’s Liability under the Contract for International Air Transportation of Passengers and Luggage: An Analysis of International Treaties and Applicable Domestic Law
- Libor Klimek, Cross-border Vehicle Crime: The European Union Response
- Jakub Kociubiński, Air Transport as a Tool for Regional Development in Central and Eastern EU Countries – the Chances and Challenges of the Public Service Obligation
- Jiří Lojda, The Impact of CMR on Multimodal Transport
- Filip Plašil & Luboš Kliment, The CMR Convention, Brussels I Regulation and“Empty International Competence”: The Determination of Territorial Jurisdiction of National Courts in Disputes Arising out of the International Carriage of Goods
- Bohumil Poláček, Resolution of Disputes in the International River and Maritime Transport in Arbitration
- Tatiana Tereshchenko, International Freight Forwarding Contracts: What to Know When Entering the Contract
- Daniela Nováčková, The Legal Instruments of EU Fiscal and Monetary Stability
- Zdeněk Nový, The Role of the UNIDROIT in the Unification of International Commercial Law with a Specific Focus on the Principles of International Commercial Contracts
- Katarzyna Sękowska-Kozłowska, The Role of Non-governmental Organisations in Individual Communication Procedures before the UN Human Rights Treaty Bodies
- Elisabeth Perham, A Solution for the Third International Decade for the Eradication of Colonialism: A ‘Fourth’ Option to Obviate the Need for a Fourth Decade?
- Andrew Erueti & Joshua Pietras, Extractive Industry, Human Rights and Indigenous Rights in New Zealand’s Exclusive Economic Zone
- Susan O’Connor, Up in Arms: A Humanitarian Analysis of the Arms Trade Treaty and its New Zealand Application
- Brian Drummond, Is the United Kingdom Nuclear Deterrence Policy Unlawful?
- Commentaries and Notes
- Elana Geddis & Penelope Ridings, Whaling in the Antarctic: Some Reflections by Counsel
- Claire Breen, The Arab Spring: A Testing Time for the Application of International Humanitarian Law
Wednesday, June 17, 2015
The idea underlying the clean hands doctrine is that the lawfulness of the investor’s conduct is a pre-condition for the bestowal of jurisdiction upon the arbitral tribunal. However, this paper argues that the application of such doctrine – in the investment arbitration context – should not mean that States have an unlimited right to pursue the dismissal of a claim following an investor’s failure to comply with the host State’s law. Thus, there are two factors that an investment arbitration tribunal should take into account when confronted with allegations of unlawful acts committed by an investor in the establishment or development of its investment. First, the tribunal should assess the type and the degree of the violation of the law committed by the investor; and second, the tribunal should evaluate the relationship between the investor’s wrongdoing and the State’s conduct in connection with the commission and subsequent treatment of such infraction. In short, this paper provides an analytical framework for tribunals to follow in cases where the clean hands doctrine is invoked.
This paper discusses the role of the International Committee of the Red Cross (ICRC) in the implementation of the Geneva Conventions. It begins with a background on the ICRC, covering its history and structure, international legal status, and its impartiality, neutrality, and independence. It then details the ICRC’s functions under the Geneva Conventions, its methods for fostering compliance with international humanitarian law, and its relations with international criminal courts. The ICRC has repeatedly acted beyond its very limited textual mandate in the Conventions to take on significant responsibilities in their execution. Its unique modus operandi, centered on direct interactions with warring parties, has demonstrated some effectiveness, even as the confidentiality at its centre has proved controversial. Ultimately, the major role played by this unique NGO is evidence of an unwillingness of the Conventions’ parties to create and own a robust enforcement mechanism.
The demise and rebirth of states brings with it a set of very complicated legal issues, among which is the question of how to deal with that state's cultural heritage, whether within its boundaries or not. Through a historical analysis of state dissolution and succession and its impact on cultural heritage from 1815 to present day, the work will identify guiding principles to facilitate the conclusion of agreements on the status of cultural property following the succession of states. Studying primary materials and evidence of state practice that has not been available before, the work will propose a novel approach to state succession from the perspective of the emerging interest of the international community to safeguard cultural heritage. State succession is one of the most obscure areas of international law since its rules are characterized either by their absence or their inconsistency.
This book explores to what extent the principles and practice of state succession correspond to the evolution of the concept of cultural heritage in international law. It provides an extensive analysis of the alternations of the international practice and legal doctrine of state succession to tangible cultural heritage since the formation of the European nation-states in the nineteenth century - through the experience of decolonization to the post-Cold War dissolution of multinational states.
Tuesday, June 16, 2015
- Issue Focus: Global Responsibility of Transnational Corporations
- Mahdev Mohan, Corporate Accountability in Southeast Asia: National Action Plans for Responsible Business Conduct under International Law
- Mariko Shoji, Global Accountability of Transnational Corporations: The UN Global Compact as a Global Norm
- Jun Zhao, Human Rights Accountability of Transnational Corporations: A Potential Response from Bilateral Investment Treaties
- JAn Chen & Fan Yang, Global South at 50 and beyond?: The Voice from China for Establishing NIEO
- Abdul Ghafur Hamid @ Khin Maung Sein, Combating Terrorism and the Use of Force against a State: A Relook at the Contemporary World Order
- Notes & Comments
- Hyoungjin Moon & Jongho Nam, The Great Ming Code and International Custom of Medieval East Asia: An Analysis of Korea’s Policies regarding Japanese Crimes in the Fifteenth Century
- Tianbao Qin, Dispute over the Applicable Scope of the Svalbard Treaty: A Chinese Lawyer’s Perspective
- Regional Focus & Controversies: Maritime Dispute in the Ambalat Block
- Areej Torla, Salma Yusof & Mohd Hisham Mohd Kamal, Malaysia
- Ida B.R. Supancana, Indonesia
International criminal law has witnessed significant developments in recent years. The work and jurisprudence of the International Criminal Court have grown, not always without controversy, while the states parties to the Rome Statute have succeeded in adopting a definition of the crime of aggression. Numerous questions of international criminal law, from the definition of the crime of genocide to the content of the obligation to prosecute or extradite, have come before the International Court of Justice. Meanwhile, debates over the prosecution of international crimes before national courts have come to a head, with differences over universal jurisdiction and the immunity of state officials from foreign criminal jurisdiction being aired in the Sixth Committee of the United Nations General Assembly.
International Criminal Law provides a comprehensive overview of an increasingly integral part of public international law. It complements the usual accounts of the substantive law of those international crimes tried to date before international criminal courts and of the institutional law of those courts with in-depth analyses of fundamental formal juridical concepts such as an 'international crime' and an 'international criminal court'; with detailed examinations of the many international crimes provided for by way of multilateral treaty and of the attendant obligations and rights of states parties; and with sustained attention to the implementation of international criminal law at the national level. Direct, concise, and precise, International Criminal Law should prove a valuable resource for scholars and practitioners of the discipline of international criminal law.
- Special Issue: Challenges to Emerging and Established Powers: Brazil and the United Kingdom in the Contemporary Global Order
- Marco Vieira & Jonathan Grix, Introduction
- Mahrukh Doctor, Brazil's Role in Institutions of Global Economic Governance: The WTO and G20
- Chris Rogers, Global Economic Governance and the British Economy: From the Gold Standard to the G20
- Adriana Erthal Abdenur, Organisation and Politics in South–South Cooperation: Brazil's Technical Cooperation in Africa
- Emma Mawdsley, DFID, the Private Sector and the Re-centring of an Economic Growth Agenda in International Development
- Monica Hirst, Emerging Brazil: The Challenges of Liberal Peace and Global Governance
- Page Wilson, Three Emerging Security Challenges for the UK
- Elena Lazarou & Bruno Theodoro Luciano, Regionalism as an Instrument: Assessing Brazil's Relations with its Neighbourhood
- Tim Oliver, Europe's British Question: The UK–EU Relationship in a Changing Europe and Multipolar World
- Eduardo Viola & Larissa Basso, Brazilian Energy-Climate Policy and Politics towards Low Carbon Development
- Sevasti-Eleni Vezirgiannidou, The UK and Emerging Countries in the Climate Regime: Whither Leadership?
- Jonathan Grix, Paul Michael Brannagan & Barrie Houlihan, Interrogating States’ Soft Power Strategies: A Case Study of Sports Mega-Events in Brazil and the UK
- Stephen M. Schwebel, In defense of bilateral investment treaties
- Michael Hwang, Commercial courts and international arbitration—competitors or partners?
- James D. Fry & Odysseas G. Repousis, Intertemporality and international investment arbitration: protecting the jurisdiction of established tribunals
- Bree Farrugia, The human right to water: defences to investment treaty violations
- Fabio G. Santacroce, The emergency arbitrator: a full-fledged arbitrator rendering an enforceable decision?
- Michael Trebilcock & Kristen Pue, The Puzzle of Agricultural Exceptionalism in International Trade Policy
- Henok Birhanu Asmelash, Energy Subsidies and WTO Dispute Settlement: Why Only Renewable Energy Subsidies Are Challenged
- Dylan Geraets, Colleen Carroll, & Arnoud R. Willems, Reconciling Rules of Origin and Global Value Chains: The Case for Reform
- Jie Huang, Challenges and Solutions for the China–US BIT Negotiations: Insights from the Recent Development of FTZs in China
- Tristan Feunteun, Cartels and the Right to Food: An Analysis of States’ Duties and Options
- Henrik Andersen, Protection of Non-Trade Values in WTO Appellate Body Jurisprudence: Exceptions, Economic Arguments, and Eluding Questions
- Ming Du, Explaining China’s Tripartite Strategy Toward the Trans-Pacific Partnership Agreement
- Nicolaj Kuplewatzky, Deflection of Trade upon Enlargement of the European Union
- Shin-yi Peng, Cybersecurity Threats and the WTO National Security Exceptions
Monday, June 15, 2015
- Legal normativity through tacit agreements: Putting Peru v Chile into a broader perspective
- Introduced by Beatrice Bonafé and Paolo Palchetti
- Jean d'Aspremont, The International Court of Justice and tacit conventionality
- Giovanni Distefano, L’accord tacite ou l’univers parallèle du droit des traités
- Symposium: The Incorporation of Crimea by the Russian Federation in the Light of International Law
- Christian Marxsen, Anne Peters, & Matthias Hartwig, Introduction
- Christian Marxsen, Territorial Integrity in International Law – Its Concept and Implications for Crimea
- Veronika Bílková, The Use of Force by the Russian Federation in Crimea
- Stefan Oeter, The Kosovo Case – An Unfortunate Precedent
- Theodore Christakis, Self-Determination, Territorial Integrity and Fait Accompli in the Case of Crimea
- Anatoly Kapustin, Crimea’s Self-Determination in the Light of Contemporary International Law
- Vladislav Tolstykh, Three Ideas of Self-Determination in International Law and the Reunification of Crimea with Russia
- Alexander Salenko, Legal Aspects of the Dissolution of the Soviet Union in 1991 and Its Implications for the Reunification of Crimea with Russia in 2014
- Oleksandr Merezhko, Crimea’s Annexation by Russia – Contradictions of the New Russian Doctrine of International Law
- Alena F. Douhan, International Organizations and Settlement of the Conflict in Ukraine
- Enrico Milano, Russia’s Veto in the Security Council: Whither the Duty to Abstain under Art. 27(3)of the UN Charter?
- Lars Viellechner, Verfassung als Chiffre
- Jochen Rauber, Verhältnismäßigkeit und völkerrechtliche Systembildung
Exclusion from refugee status for the suspected commission of serious crimes is a topic fraught with political and legal controversy. This is an area which sees the intersection of refugee law with international criminal and humanitarian law and, increasingly, measures taken in the fight against terrorism. In Terrorism and Exclusion from Refugee Status in the UK, Sarah Singer examines whether and how ‘terrorism’ has featured in the UK’s interpretation and application of the Refugee Convention’s ‘exclusion clause’. A number of sources are drawn on including questionnaires and interviews conducted with immigration judges, the Home Office’s exclusion unit and legal practitioners. She therefore provides an unprecedented and thorough analysis of the UK’s approach to asylum seekers suspected of serious criminality.
- Jim Sleeper, Innocents Abroad? Liberal Educators in Illiberal Societies
- Rahul Sagar, Against Moral Absolutism: Surveillance and Disclosure After Snowden
- Alex J. Bellamy, The Responsibility to Protect Turns Ten
- Eamon Aloyo, Just War Theory and the Last of Last Resort
- Graham Long, The Idea of Universality in the Sustainable Development Goals
- Review Essay
- Rowan Cruft, Human Rights Law Without Natural Moral Rights
This book examines how the functioning of the International Criminal Court has become a forum of convergence between the common law and civil law criminal justice systems. Four countries were selected as primary examples of these two legal traditions: the United States, England and Wales, Germany and Poland. The first layer of analysis focuses on selected elements of the model of accusation that are crucial to the model adopted by the ICC. These are: development of the notion of the prosecutor’s independence in view of their ties to the countries and the Security Council; the nature and limits of the prosecutor’s discretional powers to initiate proceedings before the ICC; the reasons behind the prosecutor’s choice of both defendants and charges; the role the prosecutor plays in the procedure of disclosure of evidence and consensual termination of proceedings; and the determinants of the model of accusation used during trial and appeal proceedings. The second layer of the book consists in an analysis of the motives behind applying particular solutions to create the model of accusation before the ICC. It also shows how the model of accusation gradually evolved in proceedings before the military and ad hoc tribunals: ICTY and ICTR. Moreover, the question of compatibility of procedural institutions is addressed: In what ways does adopting a certain element of criminal procedure, e.g. discretional powers of the prosecutor to initiate criminal proceedings, influence the remaining procedural elements, e.g. the existence of the dossier of a case or the powers of a judge to change the legal classification of the criminal behavior appearing in the indictment?
This conference brings together leading international experts to assess the effectiveness of international law in ensuring responsibility for the injurious cyber activities of non-state actors. In particular, this conference addresses three critical international legal questions: Can states be held responsible for injurious acts committed by non-state actors in or through cyberspace? Can individuals be held criminally responsible for malicious cyber operations and how is jurisdiction established in cyberspace? What challenges do international courts face when conducting cyber investigations and how do international courts assess the probity of cyber evidence?
- Special Issue: Vulnerability of Children within International Law
- Cecilia M. Bailliet, Vulnerability of Children within International Law: Introduction
- John Tobin, Understanding Children’s Rights: A Vision beyond Vulnerability
- Sevda Clark, Child Rights and the Movement from Status to Agency: Human Rights and the Removal of the Legal Disabilities of Vulnerability
- Kirsten Sandberg, The Convention on the Rights of the Child and the Vulnerability of Children
- Diane Marie Amann, The Child Rights Convention and International Criminal Justice
- Helen Keller & Corina Heri, Protecting the Best Interests of the Child: International Child Abduction and the European Court of Human Rights
- Sara Dillon, Child Labour and the Global Economy: Abolition or Acceptance?
- Anders Henriksen, Lawful State Responses to Low-Level Cyber-Attacks
Sunday, June 14, 2015
Franck, Freda, Lavin, Lehmann, & van Aaken: International Arbitration: Demographics, Precision and Justice
Historically there has been little empirical information that analyzes international arbitration, particularly the background, perceptions and experiences of the counsel and arbitrators. In an effort to fill the gap, we gathered original empirical data during the biennial Congress for the International Council for Commercial Arbitration (ICCA) in 2014. We used the data to explore basic information about counsel and arbitrators in international arbitration and survey their perspectives on the matters concerning the conference themes of legitimacy, precision and justice in international arbitration. This Chapter examines the survey responses of 548 attendees, including 413 participants who served as counsel and 262 who served as arbitrators. The dataset also included 67 participants who served as investment treaty arbitrators, which make the results of interest to commercial arbitration and investor-state dispute settlement (ISDS).
The first part of the Chapter explores demographic information. It identified some progress beyond historical Cold War divides, and arbitrators and counsel reflected a broad spectrum of nationalities, continents, languages and legal training. Yet, there was still a degree of relative homogeneity and arguably disproportionate levels of representation by men from North American and Europe countries, and other states with high levels of economic development.
The second part of the Chapter explores precision in international arbitration related to burdens of proof, advance articulation of standards for costs assessments, withholding documents during discovery and advance arbitrator preparation for hearings. Individuals who served as international arbitration counsel and/or arbitrator considered issues burden of proof frequently to be outcome determinative in arbitration cases; yet those same respondents indicated tribunals only occasionally articulated the burden of proof in advance. Moreover, there was a statistically meaningful difference in the responses of common and civil law-trained lawyers to these questions, suggesting there were different sets of expectations, experiences, and potential normative solutions for enhanced precision. International arbitration may also benefit from providing enhanced precision and oversight in document production, as roughly 70% of respondents indicated parties “sometimes” or “frequently” withheld relevant documents. One area for cautious optimism was that nearly 79% of counsel and arbitrators indicated that international arbitrators were either “sometimes” or “frequently” prepared for hearings, and it was rare for arbitrators to be unprepared.
The third part of the Chapter explores themes of justice in international arbitration related to arbitral prestige and appointment, fraud, and diversity. The survey queried explored extra-legal factors that may motivate arbitrator decision-making such as prestige, arbitral reappointments or future interactions with co-arbitrators. The data reflected that ICCA participants viewed international arbitration appointments as prestigious, but that appointments in investment treaty arbitration were particularly prestigious. Although both men and women found international arbitration appointments to be highly prestigious, women tended to find appointments more prestigious than men, which might reflect the relative scarcity of appointments of female arbitrators. International arbitrators did not see themselves as motivated by future appointments or interactions with colleagues when rendering arbitral decisions.
Roughly 80% of ICCA participants identified that fraud occurred in international arbitration “sometimes” or “occasionally”, and under 15% believed that fraud occurred frequently or always. We detected a meaningful difference in responses between those who had acted as either counsel or arbitrator and those who had not. Individuals without any international arbitration experience, whether as counsel or arbitration, were more likely to perceive a higher prevalence of fraud in international arbitration.
Over 55% of participants identified international arbitration experiences diversity challenges related to gender, nationality or age; whereas only 15.4% actively disagreed with the idea that diversity issues exist. This perception was borne out against participants’ reported experiences, as it was rare to have experienced tribunals with multiple women or multiple arbitrators from developing countries. There were divides in participants’ perceptions of diversity concerns. Women were more likely than men to identify diversity concerns, which is perhaps unsurprising as they were a small proportion of the sample. Participants from developed states, namely OECD countries, were more likely than their developing state counterparts to identify concerns about diversity. This creates a unique opportunity for international arbitration, namely, having identified an observable problem with diversity, the community can choose to be either a leader — and how to do so — in expanding opportunities for diversity within the larger community of international courts and tribunals.
Symposium: Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory (Update)
During the last decade, the image of war correspondents in the news has shifted dramatically. Reports are no longer full of cheerleading stories of embedded journalists. Instead, stories of war reporters being attacked, kidnapped or injured prevail. Sadly, the former heroic witnesses to war have become victims of their own story.
In this book, Nina Burri provides the first comprehensive analysis on how international law protects professional and citizen journalists, photographers, cameramen and their support staff during times of war. Using examples from recent armed conflicts in Iraq, Libya, Gaza and Syria, Burri explores the means, methods and risks of contemporary war coverage and examines the protection of news providers by international humanitarian law, international criminal law and human rights law.
Hernandez: The Responsibility of the International Legal Academic: Situating the Grammarian within the 'Invisible College'
It has been said that it is narcissistic for an international legal scholar to reflect on the role of the academic within the international legal profession. Yet international law is simultaneously constituted by and constitutes the community of international lawyers who engage with it. The relationship is ‘co-constitutive’, meaning on the one hand that it is the community of international lawyers who come to create, interpret and render operative the international law with which they engage in their professional practice; and simultaneously, that certain argumentative rules pervade the international legal discipline, generating background ideas that come to constitute, or at least structure, the professional vocabularies of all international lawyers.
This Chapter presents some reflections on the specific function of the international legal academic, and how our teachings come to structure the international law profession more generally, consider the extent to which the metaphor of a grammar common to international lawyers, which enables the creation and justifies the validity of international legal rules, constitutes the role of the international legal academic, using the metaphor of the grammarian. It will explore the international legal profession as a wider ‘community’ of practice, bound by interpretive canons or even a shared episteme rather than by a mere shared object of engagement. It will engage with so-called ‘activist’ scholarship that is mindful of its law-creative (normative) potential and seeks to take full advantage of it, acknowledge the social reality of international legal scholars being in constant engagement with practitioners, governmental officials, international judges. This Chapter will conclude with a few thoughts on how Koskenniemi’s famous call for a ‘culture of formalism’ can serve to acknowledge that the use of the international legal vocabulary is fundamentally a choice. Understanding the parameters of that choice can, above all, better understand and situate the role of the international legal scholar within the wider phenomenon of international law, and give rise to a wider ethic of responsibility on the part of international lawyers.