This study focuses on the need to harmonise the law of international sale within the SADC region in order to facilitate international trade with the aim of fostering regional integration, economic development and alleviating poverty. This study addresses the mechanisms by which such harmonisation could be achieved by analysing three models which have been selected for this purpose, namely the CISG, the OHADA and the proposed CESL. The main issues addressed include whether SADC Member States should adopt the CISG, join OHADA, emulate the CESL or should use any of the other instruments as a model for creating a harmonised sales law for SADC. In conclusion, it is observed that SADC has its own institutional and operational mechanisms that require a process and instrument tailor-made for the unique needs of the region. It is recommended that SADC should create its own common sales law based on the CISG but taking into account lessons learnt from both the OHADA system and the CESL. A number of legislative, institutional and operational transformative and reform mechanisms are recommended to enable the creation of such a community law and ensure its uniform application and interpretation. Dr Tapiwa Shumba is a post-doctoral researcher in International commercial law at Stellenbosch University in South Africa.
Saturday, July 11, 2015
Friday, July 10, 2015
- Special Issue: Marine Biological Resources and Biodiversity in the South China Sea: Challenges and Prospects
- Keyuan Zou, Managing Biodiversity Conservation in the Disputed Maritime Areas: The Case of the South China Sea
- Marie Antonette Juinio-Meñez, Biophysical and Genetic Connectivity Considerations in Marine Biodiversity Conservation and Management in the South China Sea
- Edgardo D. Gomez, Rehabilitation of Biological Resources: Coral Reefs and Giant Clam Populations Need to Be Enhanced for a Sustainable Marginal Sea in the Western Pacific
- Nguyen Chu Hoi & Vu Hai Dang, Building a Regional Network and Management Regime of Marine Protected Areas in the South China Sea for Sustainable Development
- Jianwei Li & Ramses Amer, Closing the Net Against IUU Fishing in the South China Sea: China's Practice and Way Forward
- Shih-Ming Kao, International Practices on the Management of Fishery Resources: Lessons Learnt for the South China Sea
- Robin Warner, Stemming the Black Tide: Cooperation on Oil Pollution Preparedness and Response in the South China Sea and East Asian Seas
The International Law Commission’s Guiding Principles for Unilateral Declarations and its Guide to Practice on Reservations to Treaties are among the recent developments in international law. These developments support a new assessment on how optional clauses (eg Art 62(1) of the American Convention on Human Rights) and especially the Optional Clause (Art 36(2) of the Statute of the International Court of Justice (ICJ)) can be characterised and treated. The question is in how far optional clauses and the respective declarations can be considered a multilateral treaty or a bundle of unilateral declarations and to what extent one of the corresponding regimes applies.
Based on inter alia on the jurisprudence of the Permanent Court of International Justice and the ICJ on the Optional Clause, but also on the relevant jurisprudence of the Inter-American Court of Human Rights and the European Court of Human Rights and the General Comments of the United Nations Human Rights Committee, this book provides a comprehensive assessment of all legal issues regarding the Optional Clause and also optional clauses in general. The book deals with the making of Optional Clause declarations, the interpretation of such declarations and reservations made to the declarations as well as the withdrawal or amendment of declarations.
In its first twenty years, the WTO dispute settlement system generated over 350 decisions totalling more than 60,000 pages. These decisions contain many statements by WTO adjudicators regarding the law of treaties, state responsibility, international dispute settlement, and other topics of general public international law. This book is a collection of nearly one thousand statements by WTO adjudicators relating to admissibility and jurisdiction; attribution of conduct to a State; breach of an obligation; conflicts between treaties; countermeasures; due process; evidence before international tribunals; good faith; judicial economy; municipal law; non-retroactivity; reasonableness; sources of international law; sovereignty; treaty interpretation; and words and phrases commonly used in treaties and other international legal instruments. This comprehensive digest presents summaries and extracts organized systematically under issue-specific sub-headings, making this jurisprudence easily accessible to students and practitioners working in any field of international law.
The doctrine of universal jurisdiction has evolved throughout modern times in the context of global criminal justice as a paramount agent of combating impunity emanating from international criminality. Sierra Leone, as a member of the international community and the United Nations, has, in recent times, been a pioneer in the progressive application and development of international criminal law in the African region. Despite this role, the country’s profile, both in terms of the incorporation and application of the doctrine of universal jurisdiction, is deficient in several major respects falling far short of its dual international obligation not to provide safe havens from justice for perpetrators of international crimes and to combat impunity from such criminogenic acts. Hence, a compelling reason for the author to write this book was to provide a seminal scholarly work on the subject articulating the existing state of the law in Sierra Leone and highlighting the deficiencies in the law and factors inhibiting the exercise of universal jurisdiction in this UN member state. It was also to propose necessary substantive and procedural law reforms in the state’s jurisprudence on the subject.
In the past decade, the Association of Southeast Asian Nations (ASEAN) has transformed from a periodic meeting of ministers to setting ambitious goals of becoming a Community by 2015. ASEAN is now the most important regional organisation in the history of the continent of Asia. An important tension in this transformation is the question of whether the 'ASEAN way' - defined by consultation and consensus, rather than enforceable obligations - is consistent with the establishment of a community governed by law. This book examines the growing interest in following through on international commitments, in particular monitoring implementation and compliance. Key barriers remain, in particular the lack of resources and ongoing resistance to accepting binding obligations. It remains to be seen whether these trends herald a more measured approach to decision-making in ASEAN. Written for practitioners and researchers alike, this important book provides the first systematic survey of monitoring within ASEAN.
Thursday, July 9, 2015
The book offers insights on whether international law can shape the politics of the Security Council and conversely, the extent to which the latter contribute to the development of international law. By providing a systematic analysis of the quantity and quality of international legal instruments referred to in the text of resolutions, the book reconstructs patterns of the Security Council’s behavioural regularities and assesses them against the provisions of the United Nations Charter, which establishes its mandate. The analysis is divided into three periods – the origins and Cold War period, post-Cold War period and the twenty-first century – and assesses the resolutions passed in each period by thematic category. The book argues that while international law plays an important role in shaping the politics of the Security Council, the Council’s resolutions do not contribute significantly to the development of international law.
- C. Medina Quiroga, The Inter-American Court of Human Rights: 35 Years
- O. De Schutter, Welfare State Reform and Social Rights
- C. Burbano Herrera & F. Viljoen, Danger and Fear in Prison
- J. Krommendijk, The (In)effectiveness of UN Human Rights Treaty Body Recommendations
- A. Wolman, Sub-National Human Rights Institutions and the Domestication of International Human Rights Norms
- J. Couso, Sine Qua Non: On the Role of Judicial Independence for the Protection of Human Rights in Latin America
- Special Issue: The Crisis in Ukraine
- Zoran Oklopcic, Introduction: The Crisis in Ukraine Between the Law, Power, and Principle
- Jure Vidmar, The Annexation of Crimea and the Boundaries of the Will of the People
- Brad R. Roth, The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention
- Mikulas Fabry, How to Uphold the Territorial Integrity of Ukraine
- Umut Özsu, Ukraine, International Law, and the Political Economy of Self-Determination
- Outi Korhonen, Deconstructing the Conflict in Ukraine: The Relevance of International Law to Hybrid States and Wars
- Boris N. Mamlyuk, The Ukraine Crisis, Cold War II, and International Law
- Stephen Tierney, Sovereignty and Crimea: How Referendum Democracy Complicates Constituent Power in Multinational Societies
- Yaniv Roznai & Silvia Suteu, The Eternal Territory? The Crimean Crisis and Ukraine’s Territorial Integrity as an Unamendable Constitutional Principle
- Amandine Catala, Secession and Annexation: The Case of Crimea
- Ayelet Banai, Territorial Conflict and Territorial Rights: The Crimean Question Reconsidered
- Malcolm MacLaren, “Trust the People”? Democratic Secessionism and Contemporary Practice
- Zoran Oklopcic, The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial Rights and Constitutional Paradoxes
- Andrew Arato, International Role in State-Making in Ukraine: The Promise of a Two-Stage Constituent Process
- Scientific Articles
- PR Thulasidhass, Most-Favoured Nation Treatment in International Investment Law: Ascertaining the Limits through Interpretative Principles
- Ricarda Roesch, Françafrique and the Prohibition of the Use of Force
- Leif Cocq-Rasmussen, An Analysis of Geopolitical Considerations of Investor State Dispute Settlement and the Pursuit of Impartial Justice
- Eva Manco, Detention of the Child in the Light of International Law-A Commentary on Article 37 of the United Nation Convention on the Rights of the Child
- Opinion Articles
- Michele Tedeschini, Complementarity in Practice: the ICC’s Inconsistent Approach in the Gaddafi and Al-Senussi Admissibility Decisions
- Steven James Barela & Alexis Keller, Justice, Peace and Jus Post Bellum
- Special Issue: Risk and Resilience to Mass Atrocities
- Stephen McLoughlin, Introduction
- Witold Mucha, The Next ‘Spring’ is Certain to Come – and Certain to be Missed
- Stephen McLoughlin, Rethinking the Structural Prevention of Mass Atrocities
- Bridget Conley-Zilkic, Who Is the Subject of Atrocities Prevention?
- Manus I. Midlarsky, International Affinity and the Prevention of Genocide
- Deborah Mayersen, Rethinking Approaches to Prevention under the Responsibility to Protect
Wednesday, July 8, 2015
- James Kraska, The Northern Canada Vessel Traffic Services Zone Regulations (Nordreg) and the Law of the Sea
- Nengye Liu & Elizabeth A. Kirk, The European Union’s Potential Contribution to Protect Marine Biodiversity in the Changing Arctic: A Roadmap
- Carlos R. Hernández-Salas, Distinguished Status Quo: The American Antarctic Quadrant after Submissions to the Commission on the Limits of the Continental Shelf
- Rob McLaughlin, The Continuing Conundrum of the Somali Territorial Sea and Exclusive Economic Zone
- Angeline Lewis, Flag Verification on the High Seas: Understanding Requirements for Masters and Commanders
One of the most complex doctrines in contemporary international law, jus cogens is the immediate product of the socialization of the international community following the Second World War. However, the doctrine resonates in a centuries-old legal tradition which constrains the dynamics of voluntarism that characterize conventional international law. To reconcile this modern iteration of individual-oriented public order norms with the traditionally State-based form of international law, Thomas Weatherall applies the idea of a social contract to structure the analysis of jus cogens into four areas: authority, sources, content and enforcement. The legal and political implications of this analysis give form to jus cogens as the product of interrelation across an individual-oriented normative framework, a State-based legal order, and values common to the international community as a whole.
Tuesday, July 7, 2015
- Stephan W. Schill, Editorial: Opinion 2/13 – The End for Dispute Settlement in EU Trade and Investment Agreements?
- Anna-Alexandra Marhold, Fragmentation and the Nexus between the WTO and the ECT in Global Energy Governance – A Legal-Institutional Analysis Twenty Years Later
- Christine Barthelemy & Daniel Peat, Trade Remedies in the Renewable Energy Sector: Normal Value and Double Remedies
- Martin Kwaku Ayisi, The Review of Mining Laws and the Renegotiation of Mining Agreements in Africa: Recent Developments from Ghana
- Amel Abdallah, A Critical Analysis of Foreign Capital Investment Law in Oman
- Irmgard Marboe, Nordzucker AG v The Republic of Poland
- Jürgen Kurtz, On Inter-Disciplinary and Inter-Systemic Approaches to International Investment Law
Today, the idea of human rights enjoys near-universal support; yet, there is deep disagreement about what human rights actually are - their true source of origin, how to study them, and how best to address their deficits. In this sweeping historical exploration, Christopher N. J. Roberts traces these contemporary conflicts back to their moments of inception and shows how more than a half century ago a series of contradictions worked their way into the International Bill of Human Rights, the foundation of the modern system of human rights. By viewing human rights as representations of human relations that emerge from struggle, this book charts a new path into the subject of human rights and offers a novel theory and methodology for rigorous empirical study.
How did a treaty that emerged in the aftermath of the Second World War, and barely survived its early years, evolve into one of the most influential organisations in international law? This unique book brings together original contributions from an unprecedented number of eminent current and former GATT and WTO staff members, including many current and former Appellate Body members, to trace the history of law and lawyers in the GATT/WTO and explore how the nature of legal work has evolved over the institution's sixty-year history. In doing so, it paints a fascinating portrait of the development of the rule of law in the multilateral trading system, and allows some of the most important personalities in GATT and WTO history to share their stories and reflect on the WTO's remarkable journey from a 'provisionally applied treaty' to an international organisation defined by its commitment to the rule of law.
The jurisprudence of the law of nature and nations of the Early-Modern Age holds pride of place in the modern historiography of international law. Whereas the classical writers of that age undeniably exercised a significant influence on 19th-century international law, their utility as a historical source for the study of the law of nations from their own period has been far overrated. The development of the law of nations between 1500 and 1800 was much more informed by State practice than historians have commonly credited.
Moreover, historiography overestimates the novelty of the contribution of early-modern jurisprudence and has almost negated its major historic source of inspiration: the late-medieval jurisprudence of canon and Roman law. It is important to restore medieval jurisprudence to its rightful place in the grand narrative of the evolution of international law in Europe. Doing this renders a deeper insight into the dynamics of the jurisprudence of the Early-Modern Age. It shows that natural law acted as a vessel to recycle many of the doctrines of medieval jurisprudence into the language of the early-modern law of nations. But it also shows how it was an altogether feeble attempt at replacing the restrictive authority of scholastic jurisprudence with that of natural justice. As long as the fear of God gave teeth to the precepts of natural justice, it retained some real impact. But one this was lost and 19th-century international lawyers cut the historic bonds between natural law and religion, they pushed it to the wayside and ostracised it altogether from their world.
Monday, July 6, 2015
This book examines hybrid tribunals created in Sierra Leone, Kosovo, Cambodia, East Timor, and Lebanon, in terms of their origins (the political and social forces that led to their creation), the legal regimes that they used, their various institutional structures, and the challenges that they faced during their operations. Through this study, the author looks at both their successes and their shortcomings, and presents recommendations for the formation of future hybrid tribunals.
Hybrid tribunals are a form of the international justice where the judicial responsibility is shared between the international community and the local state where they function. These tribunals represent an important bridge between traditional international courts like the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and various local justice systems. Because hybrid tribunals are developed in response to large-scale atrocities, these courts are properly considered part of the international criminal justice system. This feature gives hybrid tribunals the accountability and legitimacy often lost in local justice systems; however, by including regional courtroom procedures and personnel, they are integrated into the local justice system in a way that allows a society to deal with its criminals on its own terms, at least in part.
- Mohammad Hadi Zakerhossein & Anne-Marie De Brouwer, Diverse Approaches to Total and Partial In Absentia Trials by International Criminal Tribunals
- Evelyne Schmid, Distinguishing Types of ‘Economic Abuses’: A Three-Dimensional Model
- Luke Moffett, Meaningful and Effective? Considering Victims’ Interests Through Participation at the International Criminal Court
- Diego Acosta Arcarazo, Russell Buchan, & Rene Ureña, Beyond Justice, Beyond Peace? Colombia, the Interests of Justice, and the Limits of International Criminal Law
In July 2015, as part of its summer Institute in Transnational Law, Duke Law School will be hosting a conference on the topic of “comparative foreign relations law.” The conference, which will be held at the University of Geneva, will consider similarities and differences in how nations (and the European Union as an entity) handle various issues of foreign relations law, including the incorporation of international law, the process for concluding international agreements, the accommodation of federalism and other structural values, and the decision to use military force. Scholars from various countries will present short papers outlining how these issues are addressed in their countries or in the EU, and scholars from the United States will draw comparisons to U.S. practice. A number of the U.S. participants are Reporters for the American Law Institute’s current Restatement (Fourth) project on Foreign Relations Law, and this conference will provide a useful opportunity for them to gain comparative perspectives on the issues they are considering.
Sunday, July 5, 2015
- Xu Yi-chong & Patrick Weller, Introduction: Understanding the governance of international organizations
- John Ravenhill, The World Trade Organization as an institution
- Stuart Harbison, Comment: Weak organization, strong institution
- Jim Adams, Reform at the World Bank
- Chrik Poortman, Comment 1: The World Bank
- Susan Park, Comment 2: Reform at the World Bank—plus ça change?
- Luc Hubloue & Orasa Vongthieres, Governance at work at the International Monetary Fund
- Mike Callaghan, Comment 1: IMF governance and decision-making processes
- André Broome & Leonard Seabrooke, Comment 2: The IMF’s governance of economic policy knowledge
- Naresh Prasad, The World Intellectual Property Organization
- Geoffrey Yu, Comment 1: The World Intellectual Property Organization
- Charles Lawson, Comment 2: The problems of over-representation and fragmented subject areas in reaching agreement at WIPO
- David Hallam, Turbulence and reform at the United Nations Food and Agriculture Organization
- Robin Davies, Comment: The relevance, competence, and prospects of the Food and Agriculture Organization
- Patrick Weller & Xu Yi-chong, The World Health Organization: Some views from inside
- Sara E. Davies & Jeremy R. Youde, Comment: In reform we trust—the challenge before the World Health Organization
- Patrick Weller & Xu Yi-Chong, Afterthoughts