The United States’ position in, and conduct of, the negotiations leading to the Paris Agreement, as with almost all international diplomacy leading to reciprocal international undertakings conducted by that country, reflected not only internal politics, but also the constraints of domestic law. The United States is not unique in this respect, but it is unusual in the extent to, and manner in which, its municipal law constrains the creation of international commitments. This article disaggregates US international and domestic climate policy as it developed prior to the Paris negotiations and analyses how those dynamics played out on the multilateral stage, influencing the shape of the Paris Outcome even to the name of the instrument. Among the subjects analysed are (1) the extent of the Executive’s powers in foreign relations on climate and related issues; (2) the strengths and limitations of existing federal legislation as domestic legal authority for an international agreement on limiting emissions of climate-disrupting gases; (3) domestic implementation of the US INDC; (4) executive agreements as vehicles for undertaking internationally legally binding commitments on climate; and (5) the role of the courts.
Saturday, March 26, 2016
Wirth: Cracking the American Climate Negotiators’ Hidden Code: United States Law and the Paris Agreement
Friday, March 25, 2016
New Issue: Global Trade and Customs Journal
- Yves Melin, Users in EU Trade Defence Investigations: How to Better Take their Interests into Account, and the New Role of Member States as User Champions after Comitology
- Weiwei Zhang, Tracing GATT-Minus Provisions on Export Restrictions in Regional Trade Agreements
- Legesse Tigabu Mengie, Market Integration through WTO Law and Questions of Democracy: The Case of Ethiopia’s Accession to the WTO
- Clifford R. Sosnow. Canada’s Sanctions Regime Regarding Iran: How Much has Changed in a Post-Joint Comprehensive Plan of Action Regulated Market?
Joyner: Fundamental Rights of States in International Law, and the Right to Peaceful Nuclear Energy
This article is part of a special issue of the Cambridge Journal of International & Comparative Law addressing the concept of the fundamental rights of states in international law. The article will first consider this theme from a legal theoretical perspective. It will conclude that fundamental rights of states exist in international law as autonomous juridical principles. The article will then proceed to discuss one such asserted fundamental right of states: the right to peaceful nuclear energy, as codified in the 1968 Nuclear Nonproliferation Treaty. It will argue that the right to peaceful nuclear energy is indeed a fundamental right of states, and that it has juridical substance, and carries juridical implications, as a rule of law on par with other rules of the jus dispositivum.
Liu: Can the Polar Code Save the Arctic?
Buxbaum: Foreign Governments as Plaintiffs in U.S. Courts and the Case Against 'Judicial Imperialism'
One consequence of the increasingly transnational nature of civil litigation is that U.S. courts must frequently address the interests of foreign sovereigns. These interactions arise primarily in three contexts: when a foreign government is the defendant in a U.S. court; when a claim requires a U.S. court to scrutinize actions taken by a foreign government; and when a U.S. court seeks to apply U.S. law to persons or conduct within a foreign government’s borders. Each of these contexts invokes a narrative in which the engagement of U.S. courts interferes or conflicts with the prerogatives of a foreign sovereign. As a result, we typically consider the foreign relations implications of domestic adjudication within a paradigm that is oriented toward constraining the engagement of U.S. courts in matters involving foreign sovereign interests. What this approach ignores, however, is that foreign sovereigns are also plaintiffs in U.S. courts. A full account of the interactions between U.S. courts and foreign sovereigns must address cases in which foreign governments actively seek to engage U.S. judicial resources.
This article sets out the first systematic analysis of claims filed in U.S. domestic courts by foreign sovereigns, drawing on an examination of almost 300 claims. It establishes a basic typology of such claims, and then uses three case studies to explore and challenge the paradigm outlined above. The final section of the article relies on the results of this examination to analyze developments in one particular context: the extraterritorial application of U.S. law. It argues that the narrative of “judicial imperialism” that has come to frame discussion in that area is neither accurate nor useful.
Merkouris: Interpreting the Customary Rules on Interpretation
Lord McNair, famously stated that the ‘there is no part of the law of treaties which the text-writer approaches with more trepidation than the question of interpretation’. However, it seems that for a long time now, and especially post-VCLT (Vienna Convention on the Law of Treaties), international courts and tribunals have taken in their stride such interpretative operations without batting an eye. What is striking is that the rules concerned are the rules of interpretation themselves, and in fact not the VCLT rules, but their customary law counterparts. This is surprising for two main reasons:
1) What is being interpreted is rules of interpretation, which runs the danger of sounding and being tautological in nature, and
2) what is being interpreted is customary law, which in and of itself is quite surprising as literature seems to focus entirely on interpretation of treaties.
The present paper, aims to fill this lacuna and prove that not only interpretation of customary rules of interpretation is not problematic (it is neither tautological nor impossible), but also that it is a process that should be completely distinguished from that of formation/identification of customary international law. Whereas the latter determines the existence of a customary rule and therefore by necessity it has to grapple with ‘practice’ and ‘opinio juris’, interpretation of customary rules concerns itself with the rules after they have been formed/identified. Consequently, interpretation of customary rules is not bound by the straightjacket of ‘practice’ and ‘opinio juris’, and those rules can be allowed to breathe freely and evolve in the same way that treaty rules do. Having done that, I will then demonstrate that customary rules of interpretation have consistently been interpreted in international jurisprudence and the interpretative process is based mutatis mutandis on the same rules that are used for interpretation of treaty rules.
Milanovic: Jurisdiction and Responsibility: Trends in the Jurisprudence of the Strasbourg Court
This paper examines the overarching trends in the jurisprudence of the European Court of Human Rights on questions of state jurisdiction in the sense of Article 1 of the European Convention on Human Rights and state responsibility, after its seminal judgment in the Al-Skeini case. While the chapter makes no claim to comprehensiveness of coverage, it first discusses the threshold question of the extraterritorial applicability of human rights treaties, and analyses the relationship between the notions of jurisdiction and responsibility, specifically looking at the recent Jaloud v. Netherlands case. It then examines the issue of the relationship between human rights and international humanitarian law and the European Court’s judgment in Hassan v. UK. This chapter’s main thesis is that the Court is growing increasingly comfortable with applying the Convention extraterritorially and in armed conflict, as well as in directly invoking rules of international humanitarian law. However, a number of important caveats and uncertainties remain in the Court’s jurisprudence, which will inevitably be at issue in important cases currently pending or soon to be pending before it, e.g. the many interstate and individual applications dealing with the conflict in Ukraine.
This paper is part of an edited collection based on first joint seminar organized by the European Court of Human Rights and the European Society of International Law at the seat of the Court in Strasbourg, in June 2015.
Call for Papers: International Law and Human Rights in Crisis (Postgraduate Conference)
The International Law and Human Rights Unit, part of the School of Law and Social Justice at the University of Liverpool, warmly invites postgraduate research students to its Inaugural Postgraduate Conference in International Law and Human Rights. The conference will take place on 14th and 15th June 2016.
The theme of the conference is: ‘International Law and Human Rights in Crisis’. This is to be conceived in the broadest possible sense, incorporating both public and private international law and international, domestic and comparative perspectives on human rights. Issues may range from the role that international law and/or human rights law plays in ‘crisis’ situations, to critical legal scholarship which questions the extent to which the disciplines of international law and/or human rights, or aspects of these disciplines are themselves in ‘crisis’. Papers outside of these areas that still fall under the broad theme are also welcomed. Papers may deal with, but again are not limited to:
- Public International Law
- Conflict and Security Law
- The Law of the Global Economy
- International Courts and Tribunals
- International Criminal Law
- International, Domestic or Comparative Human Rights Law
- Transitional Justice
- Minority Protection and Self-Determination
- Migration Law
- The Theory and History of International Law and Human Rights
We encourage paper and poster proposals from postgraduate students who specialise in international law, human rights or related subjects and welcome contributions from doctrinal, normative, historical, conceptual and comparative perspectives. The conference offers a unique opportunity for postgraduate students to present and discuss their work in a stimulating and friendly academic environment, among peers with similarly oriented research interests.‘Soap Box Session’
Alternatively, we also welcome proposals for our ‘soap box session’. Here, speakers have just 5 minutes to air a controversial legal argument against the clock. They then have 10 minutes to defend this view against a critical audience! This is a dynamic forum for short presentations on bold ideas or controversial legal views.
Please send an abstract of no more than 300 words along with a short biography (no more than 100 words) to email@example.com. Abstract submission forms, and a copy of the Call for Papers, are available below:
Please indicate whether you are applying to present a paper, poster or ‘soapbox’. Applicants are welcome to submit proposals for more than one format. The deadline for submissions is 1st April 2016. Notification of acceptance will be given by 15th April 2016.Contact Us
For all inquiries, or if you would like to be added to our mailing list, please contact the organising team at: firstname.lastname@example.org.
ILHR Unit PGR Conference
School of Law and Social Justice
University of Liverpool
For further news and updates, you can also follow conference news on twitter:
Thursday, March 24, 2016
Virzo: Coastal State Competences Regarding Safety of Maritime Navigation: Recent Trends
The erosion of the freedom of the seas regime that has been taking place especially since the end of World War II seems to be continuing more gradually and in a different manner. In order to protect the interests of the international community coinciding more or less with their own needs, the coastal states, the archipelagic states, the regional fishing organizations for the high seas and the International Seabed Authority are ever more often exercising functions that previously had been carried out above all by the flag state. In this work we examine the evolution of international law governing the safety of maritime navigation. The analysis covers, first, the cooperation between coastal states and the International Maritime Organization and, subsequently, coastal states’ independently exercisable competences: both topics concerning the reinforcement of the safety maritime navigation.
New Issue: Questions of International Law
- The role of law in a bottom-up international climate governance architecture: early reflections on the Paris Agreement
- Introduced by Annalisa Savaresi and Francesco Sindico
- Harro van Asselt, International climate change law in a bottom-up world
- Christina Voigt, The Paris Agreement: What is the standard of conduct for parties?
New Additions to the UN Audiovisual Library of International Law
Call for Panel Proposals: International Law Weekend 2016
International Law Weekend 2016: Call for Panel Proposals
Deadline: April 9, 2016
Panel Proposal Submission: We are currently accepting panel proposals for the 2016 conference. Proposals should be submitted through the online Panel Proposal Form. The submission deadline is April 9, 2016. Email submission will not be accepted.
International Law Weekend (ILW) 2016 will be held 27-29 October 2016 in New York City, New York, USA. Additional information about the conference will be added regularly. If you would like to receive updates about ILW 2016 please fill out the ILW Updates & Registration Reminder form.
The unifying theme for ILW 2016 is International Law 5.0
The world is changing at an accelerating rate. From technological advances to environmental transformations, international lawyers are forced to confront emerging forces and new scenarios. Even settled principles of law are no longer settled. These tectonic shifts have been felt throughout the geography of international law. Legal professionals at every level – local, national, regional, and international – must change their practice to meet a changing world. Innovation will become necessary for survival.
ILW 2016 will explore these issues through a diverse collection of engaging and provocative panels.About ILW
ILW is sponsored and organized by the American Branch of the International Law Association (ABILA) – which welcomes new members from academia, the practicing bar, and the diplomatic world – and the International Law Students Association (ILSA).
This annual conference attracts an audience of more than eight hundred academics, diplomats, members of the governmental and nongovernmental sectors, and foreign policy and law students. Questions about ILW 2016 may be sent to email@example.com.
Fietta & Cleverly: A Practitioner's Guide to Maritime Boundary Delimitation
This book provides a user-friendly and practical guide to the modern law of maritime boundary delimitation. The law of maritime boundaries has seen substantial evolution in recent decades. The book provides a comprehensive overview of the law in this field, and its development through the United Nations Convention on the Law of the Sea, which set out the framework of the modern law in 1982. The Convention itself has since been substantially built upon and clarified by a series of judicial and arbitral decisions in boundary disputes between sovereign states, which themselves also built upon earlier case law. The book dissects each of the leading international judgments and awards since the North Sea Continental Shelf Cases in 1969, providing a full analysis of the issues and context in each case, explaining their fundamental importance to shaping the law.
The book provides over forty clear technical illustrations prepared by Robin Cleverly, one of the leading technical experts in international dispute resolution, to carefully demonstrate the key issues at stake in this complex area of law. Technological developments in the exploitation of maritime natural resources (including oil and gas) have provided a significant impetus for recent boundary disputes, as they have made the resources found in remote areas of the ocean and seabed more accessible. However, these resources cannot effectively be exploited at the moment, as hundreds of maritime boundaries worldwide remain undelimited. The book therefore complements the legal considerations raised with substantial technical input. It also identifies key issues in maritime delimitation which have yet to be resolved, and sets out the possible future direction the law may take in resolving them. It will be an unique and valuable resource for lawyers involved in cases involving maritime delimitation, and scholars and students of the law of the sea.
New Volume: Berichte der Deutschen Gesellschaft für Völkerrecht
- Andreas von Arnauld, Transnationaler Schutz der Privatsphäre aus der Sicht des Völkerrechts
- Bettina Heiderhoff, Transnationaler Schutz der Privatsphäre im Internationalen Privatrecht
- Josef Drexl, Regulierung der Cyberwelt
- Stefanie Schmahl, Cybersecurity
- Matthias Ruffert, Funktion der Wissenschaft bei der Identifikation des Völkerrechts
- Oliver Remien, Funktion der Wissenschaft bei der Identifikation des Internationalen Privatrechts
- Ursula Kriebaum, Restatements
- Christian J. Tams, Identifikation des Völkergewohnheitsrechts
Zyberi: Membership in International Treaties of Contested States
Joyner: United Nations Counter-Proliferation Sanctions and International Law
This chapter addresses the subject of the legal limitations that international law places on the imposition of coercive international economic and financial sanctions, with particular reference to sanctions with counter-proliferation aims — i.e., purposed in stopping the actual or suspected proliferation of weapons of mass destruction (WMD). Economic sanctions, whether imposed multilaterally by the U.N. Security Council or unilaterally by states, have become an increasingly utilized tool of coercive policy, particularly by powerful states and international organizations against weaker, developing states. This makes the identification and clarification of existing and emerging rules of international law imposing limits upon the ability of states and international organizations to lawfully impose coercive economic sanctions, an important part of the development of a more mature and equitable international legal system. This chapter will focus on two main areas of customary international legal obligation, the sources of which impose limits on the application of coercive international economic sanctions by states and international organizations, including the U.N. Security Council. The first is the general international law principle of economic non-coercion, and the second is international human rights law.
New Issue: The Law and Practice of International Courts and Tribunals
- Filippo Fontanelli & Paolo Busco, The Function of Procedural Justice in International Adjudication
- Eric De Brabandere, The Use of Precedent and External Case Law by the International Court of Justice and the International Tribunal for the Law of the Sea
- Lorenzo Lorenzo Palestini, The Territorial and Maritime Dispute (Nicaragua v. Colombia): On Territorial Sovereignty and the International Court of Justice’s “Failure to Rule” on the Geographical Scope of the Archipelago of San Andrés
- Pavel Šturma, Goodbye, Maffezini? On the Recent Developments of Most-Favoured-Nation Clause Interpretation in International Investment Law
- Gisèle Uwera, Investor-State Dispute Settlement (ISDS) in Future EU Investment-Related Agreements: Is the Autonomy of the EU Legal Order an Obstacle?
- Jorg Sladič, Rules on Procedural Time-Limits for Initiating an Action for Annulment before the Court of Justice of the EU: Lesser-Known Questions of Admissibility Cooperation
Wednesday, March 23, 2016
Behrens: Diplomatic Interference and the Law
Diplomatic interference carries considerable potential for disruption. In the past, diplomats have been accused of attempting to overthrow governments, of using bribes and threats and – as in the 2012 case involving wikileaks founder Julian Assange – granting asylum to persons wanted by judicial authorities. Reactions to these kinds of behaviour can be harsh: expulsions are common and, occasionally, diplomatic relations are severed altogether.
What is the international law on interference? Interference affects one of its cornerstones – the sovereignty of the receiving state – but that is not the only value which the law recognises. Diplomats can often point to the pursuit of legitimate functions or to the protection of human rights, and these aspects too, are appreciated by the international community.
Diplomatic Interference and the Law investigates the main areas in which charges of meddling have arisen, including diplomatic contacts with opposition parties, propaganda activities, the granting of asylum and the use of threats and insults. It analyses situations in which sovereignty meets with competing interests and suggests solutions which avoid a conflict of norms. It also offers advice to foreign offices, diplomats and scholars who encounter this phenomenon on a regular basis and highlights the most efficient ways of dealing with situations of this kind.
Kaye & Raustiala: The Council and the Court: Law and Politics in the Rise of the International Criminal Court
The International Criminal Court is the most significant development in international justice of the 21st century. The UN Security Council is the most powerful institution in the international legal order. This review essay explores the complex and often contentious relationship between these two bodies via an examination of David Bosco’s excellent recent book, Rough Justice: The International Criminal Court in a World of Power Politics (Oxford 2014). The ICC has over 120 member states, but only two permanent members of the Security Council. We explain the uneven and unusual evolution of the relationship between law and politics with regard to the ICC, and we explore the difficult balance struck between the imperatives of justice on the one hand and, in Bosco’s words, “a turbulent world where power matters” on the other. We describe and analyze how the Council has used—and ignored—the Court when it decides to. Finally, we conclude with some concrete and implementable recommendations for a stronger Council-Court relationship.
Call for Submissions: European Investment Law and Arbitration Review
Submissions on European investment law and arbitration requested
Call for Papers 2016
The Editorial Board invites submissions for publication for the 2016 issue.
The deadline for submission is: 15 May 2016.
Submissions should be in English and must be in conformity with the house style of the journal. All submissions must be unpublished and original material.
Submissions should be send as MS-WORD doc to: EILARev2016@gmail.com
All submissions will be peer-reviewed. The Editorial Board reserves the right to accept, reject a submission or make publication conditional on modifications, which have been suggested to the author.
Download the house style sheet here.
Long scholarly articles
Scholarly articles should provide an in-depth analysis of a topic. They should comprehensively cover the relevant case-law and literature. The maximum length should be 20,000 words.
Case-notes should provide a concise analysis of recent arbitration awards or decisions by national courts. The case-notes should include a summary of the facts and main points of the decision as well as an analysis regarding their general importance for the practice. The maximum length should be 5,000 words.
Shorter articles should offer a compact analysis of a topical issue combined with innovative views, which stimulate the debate. The maximum length should be 8,000 words.
Book reviews should offer a critical summary of the main aspects of the books reviewed. The maximum length should be 3,000 words.
Arnardóttir & Buyse: Shifting Centres of Gravity in Human Rights Protection
- Oddný Mjöll Arnardóttir & Antoine Buyse, Introduction
- Xavier Groussot, Nina-Louisa Arold Lorenz & Gunnar Thor Petursson, The Paradox of Human Rights Protection in Europe: Two Courts, One Goal?
- Davíð Þór Björgvinsson, The Role of the European Court of Human Rights in the Changing European Human Rights Architecture
- Geir Ulfstein, The European Court of Human Rights and National Courts: A Constitutional Relationship?
- Giuseppe Martinico, National Courts and Judicial Disobedience to the ECHR: A Comparative Overview
- Björg Thorarensen, The Advisory Jurisdiction of the ECtHR under Protocol No.16: Enhancing Domestic Implementation of Human Rights or a Symbolic Step?
- Antoine Buyse, Flying or Landing? The Pilot Judgment Procedure in the Changing European Human Rights Architecture
- Niamh Nic Shuibhne, The Court of Justice and Fundamental Rights: If Margin of Appreciation is the Solution, What is the Problem?
- Başak Çalı, From Flexible to Variable Standards of Judicial Review: The Responsible Domestic Courts Doctrine at the European Court of Human Rights
- Oddný Mjöll Arnardóttir & Dóra Guðmundsdóttir, Speaking the Same Language? Comparing Judicial Restraint at the ECtHR and the ECJ
- Andreas Follesdal, Squaring the Circe at the Battle at Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty Over, or Has it Just Begun?
Tuesday, March 22, 2016
Conference: ILA British Branch 2016 Spring Conference (Reminder)
Non-state actors lie at the heart of many developing trends in international law: in business, human rights, the environment, and international humanitarian and criminal law: and drive its agendas. Equally though, they are also defined by exclusion: by not being the principal subject of international law, the sovereign state. Correspondingly, non-state actors are a wide and diverse group, defined in essence not by their varied contributions but by a lack of sovereignty. This two day conference will first explore the implications of non-state actors for the structure of international law: its sources, boundaries, functions and obligations, and in dispute settlement and responsibility. Second, it will investigate the role of prominent non-state actors: corporations, international organisations, organised armed groups and terrorist networks.
Pillinger, Hurd, & Barnett: How to Get Away with Cholera: The UN, Haiti, and International Law
The legalization of world politics is often celebrated for reducing impunity for those who contribute to humanitarian crises. This may sometimes be true but the opposite is also true. In 2010, United Nations peacekeepers unwittingly brought cholera to Haiti and sparked an epidemic. Nearly a million people were made sick and 8,500 died. Legal activists have sought to hold the UN responsible for the harms it caused and win compensation for the cholera victims. However, these efforts have been stymied by the structures of public international law—particularly UN immunity—which effectively insulate the organization from accountability. In short, the UN is empowered, and the cholera victims disempowered, by legalization. The Haiti case powerfully illustrates the dangers of legalism, which have been largely overlooked in discussions of international law, and suggests that law alone is an inadequate arbiter of responsibility in international politics.
New Issue: London Review of International Law
- Nicolas Lamp, Value and exchange in multilateral trade lawmaking
- The IGLP Law and Global Production Working Group, The role of law in global value chains: a research manifesto
- Robert Knox, Valuing race? Stretched Marxism and the logic of imperialism
- Grietje Baars, “It’s not me, it’s the corporation”: the value of corporate accountability in the global political economy
- Books etc.
- Julia Dehm, International law, temporalities and narratives of the climate crisis
- Douglas Guilfoyle, Reading The City and the City as an international lawyer: reflections on territoriality, jurisdiction and transnationality
- Amanda Perry-Kessaris, Collecting value / valuing collecting
Book Forum: Anna Su's Exporting Freedom: Religious Liberty and American Power
- Book Forum: Anna Su, Exporting Freedom: Religious Liberty and American Power (2016)
- Peter G. Danchin, Exceptional and Universal? Religious Freedom in American International Law
- Saba Mahmood, Religious Liberty and American Power
- Samuel Moyn, America, Christianity, and Beyond
- Anna Su, Saving Faith
Pahuja: Letters from Bandung: Encounters with Another Inter-National Law
Between 1921 and 1945, Jawaharlal Nehru was imprisoned many times for ‘crimes’ related to India’s struggle for independence. Cumulatively, he spent many years in prison. Whilst in prison for the second or third time, Nehru began to write a series of letters to his then ten year old daughter, Indira. This chapter takes those letters as a point of departure for reflecting on the political work of history-telling in international law, and on the ways in which the ‘people’ in the Third World may be called by their leaders into relation, with each other, and with the world. In consideration of these questions, this essay is speculative rather than biographical, reflective rather than historical. What I seek to do here is to tease out a juridical-political imaginary of a certain moment, which the reader may juxtapose with what is imagined to be possible now for international law for, in and of the Global South.
Ryngaert, Dekker, Wessel, & Wouters: Judicial Decisions on the Law of International Organizations
With the rising relevance of international organizations in international affairs, and the general turn to litigation to settle disputes, international institutional law issues have increasingly become the subject of litigation, before both international and domestic courts.
The judicial treatment of this field of international law is addressed in Judicial Decisions on the Law of International Organizations through commentary on excerpts of the most prominent international and domestic judicial decisions that are relevant to the law of international organizations, providing in-depth analysis of judicial decisions. The commentaries written and edited by leading experts in the field of international institutional law, they are opinionated and critically engage with the decision in question, with commentators' and stakeholders' reactions thereto, and with later decisions, codifications, and reports.
Conference: Cambridge Journal of International and Comparative Law Fifth Annual Conference
This conference will explore how the landscape of public and private power is changing, where new and important networks and partnerships between public and private power are emerging and where public power is co-opting or commissioning private power in larger projects. This interconnectivity can be seen at all levels, challenges traditional divisions between public and private, and raises new problems for regulation.
Monday, March 21, 2016
Shaffer, Elsig, & Puig: The Law and Politics of WTO Dispute Settlement
Since its inception in 1995, the World Trade Organization (WTO) includes a highly judicialized dispute settlement system that is unique in international law and politics at the multilateral level. The WTO’s institutionalized processes significantly mediate power in dispute settlement. In this chapter, we evaluate “this move to law,” and assess the operation of the WTO dispute settlement system in political context across different governance stages. We analyze three stages of dispute settlement in line with the “stages of governance” framework developed by Wayne Sandholtz and Chris Whytock: first, we evaluate the selection process of those who interpret the rules; second, we address the context and politics of rule interpretation; and third, we discuss compliance with WTO dispute settlement rulings. The chapter shows how the law and politics of these three stages interact, so that a static analysis of individual governance stages is insufficient. As we explain, the selection of Appellate Body members, panelists, and secretariat members affects the interpretation of WTO rules. Certain interpretations, in turn, encounter stark resistance, leading to compliance challenges. The compliance challenges threaten the authority of panels and the Appellate Body, and can, in turn, inform subsequent interpretive choices, as well as the selection process of Appellate Body members and panelists. Law and politics thus continuously interact, shaping the WTO’s dispute settlement process. The chapter first evaluates the external and internal factors that drove the legalization and judicialization of the WTO dispute settlement system, and that of its predecessor, the General Agreement of Tariffs and Trade (GATT). It then analyzes three stages of governance and explains their interaction.
Neuhold: The Law of International Conflict: Force, Intervention and Peaceful Dispute Settlement
The Law of International Conflict deals with three key principles of modern international law that are related to each other from a policy-oriented perspective. The prohibition in the UN Charter has not stopped the threat or use of force, since the system of collective security of the World Organization still fails to effectively enforce it. On the other hand, the UN has developed peacekeeping operations, non-military sanctions, the international administration of territories, tribunals trying individuals for serious breaches of international humanitarian law and the concept of responsibility to protect. The prohibition of intervention, i.e. coercion below armed force, also poses numerous problems. The alternative, the peaceful settlement of disputes, can be achieved by various methods, all of which have advantages and shortcomings.
Neubauer: Das Recht des Staates auf zivilen Ungehorsam
Dürfen Staaten Völkerrecht verletzen, wenn dessen Befolgung zur Verletzung von Menschenrechten führt? Im nationalen Kontext hatte der zivile Ungehorsam eine wichtige Rolle bei der Überwindung von Unrecht und der Durchsetzung der Menschenrechte. Viele Grundrechte wurden erkämpft, indem Bürger/innen ungerechte Gesetze verletzten. Auch das internationale Recht führt nicht per se zu globaler Gerechtigkeit, sondern trägt in Teilbereichen sogar zu systematischen Menschenrechtsverletzungen bei. Basierend auf einem vernunftrechtlich begründeten Menschenrechtsansatz argumentiert Gerald Neubauer deshalb für ein Recht der Staaten auf zivilen Ungehorsam. Er entwickelt einen Kriterienkatalog, um Fälle legitimen zivilen Ungehorsams in der internationalen Politik zu erkennen. Anhand von Konflikten zwischen internationalem Wirtschaftsrecht und sozialen Menschenrechten zeigt er, wie ziviler Ungehorsam zur Fortentwicklung des internationalen Rechts beiträgt.
Lecture: Orford on "Mare Nostrum: International Law, Spatial Order, and the Mediterranean"
Singh: The Rough and Tumble of International Courts and Tribunals
The PCA, a college of arbitrators, originated as an alternative to wars and arms race in Europe at the high noon of colonialism. Subsequently, in 1922, the PCIJ was established to address the ad hoc-ism of pre-World War I hybrid tribunals. Both permanent courts and ad hoc tribunals however failed to acknowledge colonialism as international law’s Achilles heel. The interwar bourgeoisie funded the ghostwriting of apathetic legal methods and capitalist norms in transnational tongues for the protection of alien investors. Post-1945, the continuity of the structure of colonial legal arguments stood in the way of interrogating its essentialist ontology and capitalist teleology. As such, initially, the ICJ stood indifferent to the colonial question. During the ensuing Cold War, the erstwhile colonial powers refused to accept the ICJ’s jurisdiction with the United States doubting the integrity of individual judges. In disputes arising due to the breach of colonial concession contracts, invertor-state tribunals billed the costs of producing legal norms to the new sovereigns. Prescriptive writings in favour of judicial lawmaking and the proposed interweaving of investor protection with human rights continue to nourish international law’s Eurocentrism. A hyper-normative theory of lawmaking by international courts and tribunals remains decidedly indifferent to both rational choice approach and third world scholarship. This paper puts ontology and teleology of international judicial lawmaking to test.
Sunday, March 20, 2016
New Issue: Archiv des Völkerrechts
- Peter Häberle, Fünf Krisen im EU-Europa – Weltweite Implikationen, Möglichkeiten und Grenzen der Verfassungstheorie für Europa
- Ulrike Lembke, Der Frauenfriedenskongress 1915 – auch ein Beitrag zur Geschichte des Pazifismus als Völkerrechtsidee
- Beiträge und Berichte
- Johan Horst, Lex Financiaria. Das transnationale Finanzmarktrecht der International Swaps and Derivatives Association (ISDA)
- Jan-Philipp Redder, Die Unverletzlichkeit des Botschaftsgeländes (Art. 22 Abs. 1 WÜD) und ihre Grenzen – Durchbrechung eines grundlegenden Prinzips bei Löscheinsätzen?