In this introduction to the Special Issue "Empirical Studies on Investment Disputes", we offer a new heuristic model to structure the thinking about investment arbitration. Investment arbitration is presented here as a political system in a sense inspired by David Easton's landmark theory: it transforms the input of key actors (namely states, investors, arbitrators, and arbitration institutions) into output (namely arbitral awards taken in the aggregate), with feedback loops from output to input, leading to or calling for adjustments or other reactions from these actors. We use this model to review some of the leading existing research and bring together key insights offered by the contributions to the issue.
Saturday, December 26, 2015
Dupont & Schultz: Towards a New Heuristic Model: Investment Arbitration as a Political System
Friday, December 25, 2015
Murphy: New Mechanisms for Punishing Atrocities Committed in Non-International Armed Conflicts
Three core crimes have emerged as a part of the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) have been addressed through a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. Yet crimes against humanity may be more prevalent than either genocide or war crimes, and are a recurrent feature in non-international armed conflicts (NIACs).
As such, a global convention on prevention, punishment, and inter-State cooperation with respect to crimes against humanity appears to be a key missing piece in the current framework of international humanitarian law, international criminal law, and international human rights law. Such a convention could help to stigmatize such egregious conduct, could draw further attention to the need for its prevention and punishment, and could help to harmonize national laws relating to such conduct, thereby opening the door to more meaningful inter-State cooperation on the investigation, prosecution, and extradition for such crimes. In July 2014, the International Law Commission embarked on the drafting of such a convention, in the hope of presentation to the U.N. General Assembly within the next five years.
These remarks were the opening address at a conference on ‘Non-International Armed Conflicts (NIAC): Developments and Challenges’ held at Melbourne Law School, Australia, on 17 March 2015.
Schill, Tams, & Hofmann: International Investment Law and Development: Bridging the Gap
- Stephan W. Schill, Christian J. Tams & Rainer Hofmann, International Investment Law and Development: Friends or Foes?
- Muthucumaraswamy Sornarajah, Developing Countries in the Investment Treaty System: A Law for Need or a Law for Greed?
- Yannick Radi, International Investment Law and Development: A History of Two Concepts
- Markus W. Gehring & Marie-Claire Cordonier Segger, Overcoming Obstacles with Opportunities: Trade and Investment Agreements for Sustainable Development
- Andrea Saldarriaga & Kendra Magraw, UNCTAD’s Effort to Foster the Relationship between International Investment Law and Sustainable Development
- Celine Tan, Reviving the Emperor’s Old Clothes: The Good Governance Agenda, Development and International Investment Law
- Antonius R. Hippolyte, Aspiring for a Constructive TWAIL Approach Towards the International Investment Regime
- Melaku Geboye Desta, Sovereignty over Natural Resources and International Investment Law: The Elusive Search for Equilibrium
- Isabel Feichtner, International (Investment) Law and Distribution Conflicts over Natural Resources
- Jonathan Bonnitcha, Democracy, Development and Compensation under Investment Treaties: The Case of Transition from Authoritarian Rule
- Walid Ben Hamida, Investment Treaties and Democratic Transition: Does Investment Law Authorize Not to Honor Contracts Concluded with Undemocratic Regimes?
- Diane A. Desierto, The International Mandate for Development: Building Compliant Investment within the State’s Development Decision-Making Processes
- Krista Nadakavukaren Schefer, The Law of Investment Protection and Poverty Reduction
- Vid Prislan & Ruben Zandvliet, Mainstreaming Sustainable Development into International Investment Agreements: What Role for Labor Provisions?
- Christina Binder, Investment, Development and Indigenous Peoples
Lauterpacht Centre Friday Lunchtime Lecture Series for Lent Term 2016
- January 15, 2016: Eyal Benvenisti (Univ. of Cambridge - Law), Can Courts Promote Democracy in an Era of Global Governance? The Case of the Mega Regionals
- January 22, 2016: Anne van Aaken (Univ. of st. Gallen - Law), Can Behavioural Economics Inform International Legal Theory?
- January 29, 2016: Masaharu Yanagihara (Kyushu Univ. - Law), Shioki (Control), Fuyo (Dependency) and Sovereignty: The Status of the Ryukyu Kingdom in Early-modern and Modern Times
- February 5, 2016: Andrew Williams (Univ. of Warwick - Law), The UK and Allegations of War Crimes in the Occupation of Iraq: A Failure of Accountability?
- February 12, 2016: Laurel E. Fletcher (Univ. of California, Berkeley - Law), A Wolf in Sheep’s Clothing? Transitional Justice and the Effacement of State Accountability for International Crimes
- February 19, 2016: Kevin Jon Heller (SOAS, Univ. of London - Law), The Use and Abuse of Analogy in International Humanitarian Law
- February 26, 2016: Martins Paparinskis (Univ. College London - Law), The Rise and Rise of Legitimate Expectations: A Reflection on Sources and Development of International Investment Law
- March 4, 2016: Markus Krajewski (Univ. of Erlangen-Nürnberg - Law), Leading the reform of the global investment regime. The EU’s approach towards International Investment Law
- March 11, 2016: Danae Azaria (Univ. College London - Law), Treaties on Transit Pipelines: A European Perspective
Thursday, December 24, 2015
Shaffer, Wolfe, & Le: Can Informal Law Discipline Subsidies?
Some subsidies (such as for fossil fuels and fisheries) adversely affect global public goods (such as a stable climate and the maintenance of global fish stocks); others affect global price levels (domestic support for certain agriculture commodities), or have negative consequences for a trading partner. WTO members have negotiated an agreement on subsidies, but there are severe limits to that agreement’s ability to exercise discipline, and the prospects of its amendment remain limited. This article examines whether states can improve discipline through the use of informal mechanisms and, if so, under what conditions. Informal discipline on subsidies depends on the existence of fora to discuss definitions, generate information about their incidence, discuss whether a particular measure fits the definition, and consider whether a remedy exists. This article takes international organizations seriously as fora for generating “law,” not simply as bodies exercising power or coercion, and it explores a particular view of law. If codification is not the only indicator of law, if one accepts that law also emerges in social interaction, then we must attend to the less formal places where the law of subsidies emerges, and affects state actions. The analysis of where disciplines might be found is based on a three-level set of comparisons: (i) Within the WTO, involving horizontal compared to sectoral disciplines, with a focus on committee and other peer-review processes, rather than the traditional focus on the dispute settlement system; (ii) the WTO compared to, and in complement with, other international organizations addressing particular sectors; and (iii) international organizations compared to, and in complement with, non-governmental organizations. The article provides four case studies involving subsidies: (i) export credits, (ii) shipbuilding, (iii) fisheries, and (iv) fossil fuels. It assesses variations in number of actors, the conceptualization of the problem, definitions, obligation, data, and organizations across these case studies and the impact of such differences on the development of subsidy disciplines.
Job Opening: Georgia (Gabriel N. Wilner/UGA Foundation Professorship)
Hurd: Enchanted and Disenchanted International Law
Scholars and activists commonly see international law in a privileged normative and political position in world politics, where international legal institutions are assumed to advance important goals such as international stability, human justice and even global order as a whole. I explore this attitude toward international law, which I call an ‘enchanted’ view, and contrast it to the ‘disenchanted’ alternative. Where the enchanted attitude presumes the normative valence and political wisdom of following international law, the disenchanted approach treats these as open questions for inquiry and discussion. The disenchanted approach is more empirically minded, and more politically open, than the enchanted, and leads to a distinct research program on legalization in international affairs – one that is attentive to the politics of law, the connections between law and power, the ambiguity that exists between legality and policy wisdom.
AJIL Unbound Symposium: Sykes's "Economic ‘Necessity’ in International Law"
New Issue: Questions of International Law
- Is the settlement of trade disputes under Regional Trade Agreements undermining the WTO dispute settlement mechanism and the integrity of the world trading system?
- Introduced by Angelica Bonfanti & Cesare Pitea
- Gabrielle Marceau, The primacy of the WTO dispute settlement system
- Luiz Eduardo Salles, A Deal is a Deal: Party Autonomy, the Multiplication of PTAs, and WTO Dispute Settlement
New Issue: Netherlands Quarterly of Human Rights
- K. Arts, Reflections on Human Rights in the Netherlands
- A. Gurmendi Dunkelberg, ‘Their Way of Punishing’: Corporal Punishment by Indigenous Peoples and the Prohibition of Torture
- C. Romainville, Defining the Right to Participate in Cultural Life as a Human Right
- R. Pereira, Government-sponsored Population Policies and Indigenous Peoples: Challenges for International Human Rights Law
- I. Kfir, Refugeeship and Natural Law: The European Court of Human Rights
- B. Oomen, ‘Where Law and Politics Meet’: Looking at Human Rights Law Through the Lens of Legitimacy
New Issue: Revista Electrónica de Estudios Internacionales
- Ester Muñoz Nogal & Felipe Gómez Isa Derechos económicos y sociales en procesos de justicia transicional: Debates teóricos a la luz de una práctica emergente
- Mª del Pilar Diago Diago, El islam en Europa y los conflictos ocultos en el ámbito familiar
- Javier M Ruiz Arévalo, Género, derechos humanos y conciencia intecultural. El ejemplo de Afganistán
- Carmen Quesada Alcalá, La labor del Tribunal Europeo de Derechos Humanos en torno al discurso de odio en los partidos políticos: coincidencias y contradicciones con la jurisprudencia española
- Carmela Pérez Bernárdez, La problemática coordinación de la ayuda humanitaria de la Unión Europea
- Millán Requena Casanova, La recepción de la jurisprudencia de la CIJ en las decisiones de los tribunales del CIADI: Especial referencia a las cuestiones de jurisdicción
- Laura García-Álvarez, Las acciones colectivas en los litigios internacionales por daños ambientales
- Werner Miguel Kühn Baca, Aspectos jurídicos y perspectivas políticas de una posible retirada de la Unión Europea por parte del ReinoUnido
- Antonio Segura Serrano, El Acuerdo de Libre Comercio entre la UE y CANADA (CETA): Una evaluación de la política comercial de la UE
- Ruth Abril Stoffels, El Comité de la CEDAW ante las comunicaciones individuales: Requisitos de admisión y medidas provisionales
- Antonio José Rengifo Lozano, El poder constituyente de los pueblos
- Félix Vacas Fernández, El reconocimiento de la jurisdicción y la ratificación del Estatuto de la Corte Penal Internacional por el Estado de Palestina: Un proceso complejo con importantes consecuencias jurídicas
- Cayetana Santaolalla Montoya, La extinción de las cuotas lácteas en la Unión Europea y el futuro del ganadero español en el mercado mundial de alimentos
- Francisco Galán Pablo, La financiación de las operaciones de mantenimiento de la paz por parte de las organizaciones internacionales: Los casos de Naciones Unidas, OTAN y UE
- Gisela Moreno Cordero, La identidad causal como condición para el reconocimiento en Colombia de las decisiones españolas de divorcio: Incidencia del reglamento “Roma III”
Wednesday, December 23, 2015
New Additions to the UN Audiovisual Library of International Law
New Issue: Review of International Political Economy
- Roman Goldbach, Asymmetric influence in global banking regulation: Transnational harmonization, the competition state, and the roots of regulatory failure
- Kristen Hopewell, Multilateral trade governance as social field: Global civil society and the WTO
- Jonas Meckling, Bo Kong & Tanvi Madan, Oil and state capitalism: government-firm coopetition in China and India
- Alexandre Bohas, Neopluralism and globalization: the plural politics of the Motion Picture Association
- Peter Knaack, Innovation and deadlock in global financial governance: transatlantic coordination failure in OTC derivatives regulation
- David Demortain, The tools of globalization: ways of regulating and the structure of the international regime for pharmaceuticals
Tuesday, December 22, 2015
New Issue: Netherlands International Law Review
- Simone F. van den Driest, Crimea’s Separation from Ukraine: An Analysis of the Right to Self-Determination and (Remedial) Secession in International Law
- Peter McEleavy, The European Court of Human Rights and the Hague Child Abduction Convention: Prioritising Return or Reflection?
- Jane M. Rooney, The Relationship between Jurisdiction and Attribution after Jaloud v. Netherlands
- Paul J. Omar, The Inevitability of ‘Insolvency Tourism’
- Jennifer Anna Sellin, Does One Size Fit All? Patents, the Right to Health and Access to Medicines
Monday, December 21, 2015
von Arnauld, Matz-Lück, & Odendahl: 100 Years of Peace Through Law: Past and Future
- Knut Ipsen, 100 Years of Public International Law in Kiel: The History of the Walther Schücking Institute
- James Crawford, The Unfolding of Public International Law Since 1914: International Judgments and Domestic Courts with Special Reference to Germany
- Gunter Pleuger, Maintenance and Restoration of International Peace and Security by Diplomatic Means
- Francisco Orrego Vicuña, Maintenance and Restoration of International Peace and Security Through Arbitration and Judicial Settlement
- Théodore Christakis & Karine Bannelier, Maintenance and Restoration of International Peace and Security by Means of Force
- Lucy Keller Läubli, Case Study on Cambodia
- Frank Hoffmeister, Case Study on Cyprus
- Jean-Yves de Cara, Case Study on Libya
- Marco Sassòli & Yvette Issar, Challenges to International Humanitarian Law
- Andreas Paulus, UN Missions and the Law of Occupation
- Marth Noortmann & Ioannis Chapsos, Private Military Companies: A Transnational Legal Approach
Job Opening: Glasgow (Lecturer)
New Issue: Diritti umani e diritto internazionale
- Cesare Pitea, Azioni di contrasto alla pirateria e Convenzione europea dei diritti umani: questioni di attribuzione e di applicazione extraterritoriale
- Laura Magi, Gli obblighi incompatibili derivanti dalla CEDU e dalla Carta delle Nazioni Unite, nella giurisprudenza della Corte europea dei diritti umani: riflessioni critico-ricostruttive
- La nozione di genocidio tra storia e diritto: un problema ancora aperto
- Micaela Frulli, Fulvio Maria Palombino, Introduzione
- Marcello Flores, Come si è giunti alla Convenzione sul genocidio
- Alessandro Bufalini, La responsabilità internazionale dello Stato per atti di genocidio: un regime in cerca di autonomia
- Chantal Meloni, I nodi della responsabilità per genocidio nel diritto penale internazionale: tra dimensione collettiva e imputazione individuale, precetto internazionale e accertamento nazionale
- Il caso
- Vladimiro Zagrebelsky, Parrillo c. Italia. Il destino degli embrioni congelati tra Convenzione europea dei diritti umani e Costituzione
- Barbara Randazzo, Sussidiarietà della tutela convenzionale e nuove prove di dialogo tra le Corti. Parrillo c. Italia: novità in tema di accessibilità del giudizio costituzionale dopo le ‘sentenze gemelle’ (e la sentenza n. 49 del 2015)
- Maria Chiara Vitucci, La sentenza della Corte suprema degli Stati Uniti sul matrimonio omosessuale nella prospettiva di una internazionalista
- Angelo Schillaci, «Enjoy liberty as we learn its meaning». Obergefell v. Hodges tra libertà, uguaglianza e pari dignità
- Eduardo Savarese, In margine al caso Oliari: ovvero di come il limbo italiano delle coppie omosessuali abbia violato gli obblighi positivi dell’art. 8 CEDU
- Marco Fasciglione, Towards a Human Rights Treaty on Transnational Corporations and Other Business Enterprises: The First Session of the UN Openended Intergovernmental Working Group
- Raffaella Nigro, La responsabilità degli Internet service providers e la Convenzione europea dei diritti umani: il caso Delfi AS
- Andrea Spagnolo, Attribuzione delle condotte e accertamento della giurisdizione in casi di violazioni di massa dei diritti fondamentali: sulla recente giurisprudenza della Corte europea
- Giulia Borgna, Il genocidio armeno (non) passa in giudicato: in margine al caso Perinçek
- Andrea Caligiuri, La Commissione verità e riconciliazione del Canada e la riscoperta del concetto di ‘genocidio culturale’
- Stefano Montaldo, La compatibilità con il diritto UE dei test di integrazione per i migranti regolari: sulla decisione della Corte di giustizia nel caso P. e S.
New Issue: American Journal of International Law
- Exploring Comparative International Law
- Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier & Mila Versteeg, Comparative International Law: Framing the Field
- Katerina Linos, How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics
- Neha Jain, Comparative International Law at the ICTY: The General Principles Experiment
- Mathias Forteau, Comparative International Law Within, Not Against, International Law: Lessons from the International Law Commission
- Pierre-Hugues Verdier & Mila Versteeg, International Law in National Legal Systems: An Empirical Investigation
- Christopher McCrudden, Why Do National Court Judges Refer to Human Rights Treaties? A Comparative International Law Analysis of CEDAW
- Editorial Comment
- Michael J. Glennon, The Executive's Misplaced Reliance on War Powers “Custom”
- Notes and Comments
- Alain Pellet, Response to Koh and Buchwald's Article: Don Quixote and Sancho Panza Tilt at Windmills
- Bing Bing Jia, The Crime of Aggression as Custom and the Mechanisms for Determining Acts of Aggression
- Current Developments
- Christine Gray, The 2014 Judicial Activity of the International Court of Justice
- International Decisions
- Charles Chernor Jalloh, Prosecutor v. Ruto
- Elizabeth Trujillo, China—Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum
- Klaus Ferdinand Gärditz, Shepherd v. Germany
- Dinah Shelton, Konaté v. Burkina Faso
- Ingrid Wuerth, Zivotofsky ex rel. Zivotofsky v. Kerry
- Contemporary Practice of the United States Relating to International Law
- Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States Relating to International Law
- Recent Books on International Law
- José E. Alvarez, Global Judicialization Revisited, reviewing The New Terrain of International Law: Courts, Politics, Rights, by Karen J. Alter
- Rüdiger Wolfrum, reviewing Justice Among Nations: A History of International Law, by Stephen C. Neff
- Gian Luca Burci, reviewing Global Health Law, by Lawrence O. Gostin
- Nancy Amoury Combs, reviewing Fraudulent Evidence Before Public International Tribunals: The Dirty Stories of International Law, by W. Michael Reisman and Christina Skinner
- Stanimir A. Alexandrov, reviewing Corruption in International Investment Arbitration, by Aloysius P. Llamzon
Call for Papers: Strengthening the Validity of International Criminal Tribunals
Strengthening the Validity of International Criminal Tribunals Conference
Pluricourts, University of Oslo
29 – 30 August 2016
CALL FOR PAPERS
International criminal law (ICL) re-emerged onto the global stage in the 1990s in a flood of good will and optimism. Two decades later, with its honeymoon stage well behind it, states, practitioners, scholars and others are asking where we go from here. The ad hoc tribunals are in the process of winding down amid mixed reviews. The creation of the International Criminal Court (ICC) has failed to live up to many of the optimistic expectations that were imposed upon it, with some African states such as Namibia and South Africa taking steps to withdraw from the Rome Statute. At the same time, calls are being made for new courts and ad hoc jurisdictions to be created as a solution to atrocities and for new crimes to be added to the list of core international crimes. The processes of international criminal justice are also under scrutiny, with some asking whether international criminal courts are trying to do too much. Some see an answer in complementarity- that national courts should assume the responsibility for trying those responsible for the worst atrocities, but this too may not be the panacea it appears to be. This conference seeks to explore these controversies. It seeks practical solutions to make international criminal justice more effective and relevant as it enters a more mature stage in its development.
The conference will bring together a mix of practitioners and scholars from the field of international criminal justice to exchange perspectives and to suggest solutions. We are particularly interested in the experiences of those who work in the field- fact finders, prosecution and defence lawyers, judges, NGO representatives and those involved in the post-trial stage such as members of the prison service. What challenges do they face? What works? What does not work?
We seek papers pursuing empirical, normative, comparative or theoretical approaches, and encourage papers applying alternative theories such as feminist theory, critical legal theory and TWAIL perspectives. We welcome contributions from law and the social sciences, including philosophy, sociology, criminology, psychology and history.
Papers are requested on the following topics:
1. More Courts? More Crimes?
Despite the existence of the permanent ICC, there continue to be calls for new jurisdictions to be created as a solution to atrocities- an ad hoc court for Syria, an International Court against Terrorism, an EU sponsored tribunal for the prosecution of war crimes and alleged human trafficking in Kosovo, a special tribunal for South Sudan. Is there a need for new courts? What does this say about the ICC itself, the political realities of ICL institutionalisation, the realities of contemporary violence and our imagination as responders to large-scale human suffering?
There are several challenging issues of global importance that ICL does not address at present, is it time for this to change? Are there other crimes which should be included within the remit of international criminal law, such as ecocide, terrorism, narcotics, piracy, human trafficking, money-laundering and corruption, that would make international criminal law more relevant and would increase its effectiveness?
2. Making the processes of international criminal justice more effective
What can be done to streamline international criminal procedure without undercutting the legitimate interests of key constituencies, such as states, victims and communities affected by violence, or the need to safeguard fair trial guarantees? Are we being overambitious in our expectations of ICL and its institutions? What role does the judiciary play in increasing the effectiveness of ICL procedure? Does the way that common and civil law traditions intermingle in ICL enhance the system or confuse it?
How are the various functions and responsibilities of a fully-fledged criminal justice system distributed within and across international criminal courts and tribunals? Does the particular way in which they are formulated leave any of these functions and responsibilities inadequately covered? Should that affect how we critique the courts and tribunals? For example, does the fact that each international criminal court or tribunal has its own office of the prosecutor, rather than, say, an independent international prosecutor’s office with standing to appear in multiple jurisdictions, colour the way in which we debate issues such as prosecutorial independence, accountability and selectivity? Should there be an international criminal defence bar? An international public defender’s office? Might the accountability of child soldiers be better addressed if more international courts were like the Special Court for Sierra Leone, with jurisdiction and special provisions over juvenile offenders? What would make the presidents of international criminal courts and tribunals more suitable as authorities responsible for overseeing the enforcement of sentences and other penitentiary matters for international convicts? How can reparations for victims of international crimes be awarded equitably across institutions and regions? How can we make our critiques pertinent, on point and meaningful in general?
In what way do different actors, such as states, various organs of international criminal courts and tribunals, states, NGOs and others interact with each other? Does this relationship function in a way which makes international criminal justice more effective? Do their expectations and actions really converge around international criminal justice institutions in a way that strengthens the system? How can this be improved?
3. Learning from and relying upon other courts
Some see complementarity as providing at least one answer to making international criminal justice more effective and relevant. However, what is the reality? What are the dilemmas of complementarity? How well is complementarity working in different countries, such as the Balkans, Bangladesh and Sri Lanka? Does Libya give us reason to pause over what consequences we are prepared to accept under the banner of positive complementarity? What regional approaches are being taken? Should regional criminal courts (e.g. the new jurisdiction envisaged in Africa) be encouraged as an intermediate layer in the ICC’s complementarity regime and, if so, what adjustments and safeguards would be needed? What problems are there? How can these problems be solved?
International criminal courts and tribunals are not the first kind of international institutions to have experienced similar challenges- the European Court of Human Rights and the WTO for example. How have these institutions responded? Are there lessons that international criminal institutions can learn?
Paper proposals should be emailed to firstname.lastname@example.org by 29 February 2016 with an abstract no longer than 500 words. Please include your CV. All proposals will be answered by 15 April 2016. Draft papers should be submitted by 30 June 2016. Conference papers will be selected for publication either in a special edition of a journal or in an anthology.
Inaugural Issue: China and WTO Review
- Qingjiang Kong & Yilin Wang, Transparency Standards in International Investment Agreement Negotiations: A Chinese Lawyer’s Perspective on the UNCITRAL Rules
- Guang Ma & Jiangn Li, From GATT to WTO: The Legalization of Compliance Procedures in Trade Dispute Settlement System
- Yang Yu, 'Contemporary Meaning' in Treaty Interpretation in the WTO and ICJ Cases
- Current Developments
- Xifeng Chen, The WTO Panel’s Report concerning Anti-Dumping and Countervailing Duties on Certain Automobiles from the United States: Reasoning and Evidence for WT/DS 440
- Bomin Ko, Uneasy Days of Push-and-Pull between China and the WTO: Recent Issues of China in the WTO
- Kelly Gieop Na, Designing Economic Integration of East Asia: An Outlook of Korea-China Free Trade Agreement
Sunday, December 20, 2015
Van Schaack: The Building Blocks of Hybrid Justice
The commission of mass atrocities — genocide, crimes against humanity, and war crimes — inevitably generates clarion calls for accountability from a range of international actors, including civil society organizations, governments, and United Nations bodies. These demands often center on an appeal that the situation be taken up by the International Criminal Court (ICC) via a Security Council referral or action by the Prosecutor herself. Although the ICC is now fully operational, its jurisdiction remains incomplete and its resources limited. Furthermore, the ICC is plagued by challenges to its legitimacy, erratic state cooperation, and persistent perceptions of inefficacy and inefficiency. Originally envisioned as a standing institution that would obviate the need for new ad hoc courts, it is now clear that the ICC cannot handle all the atrocity situations ravaging our planet. As such, there is an enduring need for the international community to create, and enable, additional accountability mechanisms to respond to the commission of international crimes when the political will for an ICC referral is lacking, the ICC is inappropriate or foreclosed for whatever reason, or only a fraction of the abuses or perpetrators in question are before the ICC. This contribution analyzes the accumulated experience with international, hybrid, and internationalized judicial institutions prior to and since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994. This paper assumes the continuing utility of such mechanisms as tools to provide accountability for mass violence amounting to international crimes, particularly in situations requiring an alternative or supplement to the ICC. It thus focuses on practical elements of institutional design, with particular attention to the origins, structure, jurisdictional limitations, financing, and procedures of the hybrid courts, dedicated chambers, specialized prosecutorial cells, and other accountability innovations established to prosecute atrocity crimes at the domestic level with some measure of international support, expertise, and/or personnel. From this historical and comparative analysis, the paper develops a taxonomy of models and a “menu” of elements that can be mixed and matched as new accountability mechanisms are under consideration for historical, current, and emerging atrocity situations, such as Syria, the Central African Republic, the Democratic Republic of Congo, Colombia, North Korea, South Sudan, Sri Lanka, Libya, Burundi, and even the July 2014 downing of Malaysian Air Flight 17 (MH-17) over rebel-controlled Ukraine.
Karton: The Structure of International Arbitration Law and the Exercise of Arbitral Authority
Existing theoretical treatments of international arbitration deal adequately with the sources of international arbitrators’ authority to resolve disputes, but tend to neglect the exercise of that authority. In what ways is arbitral decision-making constrained? Are international arbitrators obliged to exercise their authority in any particular ways? If so, what are the sources of such obligations, and how might they be enforced? This article contributes to the theoretical literature on international commercial arbitration by adding a dimension that has thus far been neglected: the structure of the legal regime that governs international arbitrations. It applies a familiar concept from Anglo-American jurisprudence, H.L.A. Hart’s typology of primary and secondary rules, to argue that international arbitration law is essentially contractarian in its structure. The article concludes by considering the implications of the contractarian structure of international arbitration law for the ways that arbitrators may and must exercise their authority.