Der Völkerrechtler ist mit den "Quellen" des Völkerrechts zuvörderst in Artikel 38 des IGH-Statuts konfrontiert, die herrschende Lehre ist jedoch von widersprüchlichen Thesen sowie von einer gehörigen Portion Aberglauben durchsetzt. Um Licht ins Dickicht des traditionellen Quellenverständnisses zu bringen, wird in diesem Beitrag die Lehre vom Stufenbau der Rechtsordnung - das Aushängeschild par exemple der Reinen Rechtslehre - auf das Völkerrecht und seine Lehre angewandt. Nach einer Darstellung der Stufenbaulehre in ihrem Verhältnis zum traditionellen Quellenverständnis werden die Möglichkeiten einer "Völkerrechtsquellenarchitektur" ausgelotet. Der Beitrag schließt mit der Frage, ob die Grundnorm eine Klammerfunktion für nicht durch positivrechtliche Normen verbundene (Teil)rechtsordnungen ausüben kann. Dem Völkerrechtler soll mit diesem Beitrag nahegebracht werden, daß die Stufenbaulehre nichts anderes als der zu Ende gedachte juristische Commonsense ist. Statt unkritischer Übernahme tradierter Autoritäten baut sie auf den rechtstheoretisch kritischen Blick auf die Dogmatik. Der Rechtstheoretiker hingegen lernt das Völkerrecht und seine Lehre als Labor kennen, denn die Erzeugung und Struktur des Völkerrechts können wegen ihrer einfachen, stark an das 19. Jahrhundert erinnernde Normstrukturen und Lehrgebäude als besonders lehrreicher Anwendungsfall gesehen werden.
Dieser Beitrag ist die gekürzte und mit einem - dem deutschsprachigen und eher rechtstheoretischen Leserkreis angepaßten - anderen Argumentationsgang versehene deutsche Fassung von: "Sources in Legal Positivist Theories: The Pure Theory’s Structural Analysis of the Law".
We look for the law in its 'sources.' However, as many recognise, the main-stream riverine metaphor is fatally flawed. This chapter argues that there is an unlikely saviour - the Kelsen-Merkl Stufenbau theory of the hierarchy of norms. This may seem far-fetched, but this theory is the closest we have to a legal common-sense theory of the sources of international law. It is close to the main-stream, but provides a solid theoretical basis. It does so by fashioning the only necessary link between norms into the ordering principle of legal orders: the basis of validity of one norm is another. A special type of rule - the empowerment norm - is this basis; norms are created 'under it.' This understanding of hierarchy avoids many of the misconceptions of orthodox scholarship. False necessities are deconstructed: the sources are neither a priori nor external to the law. Applying the Stufenbau theory to international law, this chapter concludes by sketching out the possibilities of ordering the sources of international law.
This chapter is a shortened and overhauled (i.e. a different style and emphasis in constructing the argument) German version of 'Sources in Legal Positivist Theories: The Pure Theory’s Structural Analysis of the Law'.
Note: Downloadable document is available in German.
Saturday, February 11, 2017
The article discusses the development of the Paris Agreement’s provision on a compliance mechanism contained in Article 15 of the treaty. There is a risk that a compliance mechanism set up as a separate body within the new regime will be duplicative and dysfunctional. Keeping state parties to their Paris Agreement obligations can be achieved, instead, through the elaboration of pre-existing and already well-developed reporting-and-review processes under the United Nations Framework Convention on Climate Change (UNFCCC). In the past, these have generated sufficient pressure on states to maintain compliance with their UNFCCC obligations, and are likely to have the same effect for the new treaty. The fact that the Paris Agreement does not impose any onerous new obligations on states is a reason to continue to rely on existing processes. I show that the separate compliance body envisaged by the Paris Agreement has no obvious way to improve on the diffuse ‘compliance mechanism’ currently operating under the UNFCCC. The most efficient approach to ‘Paris Agreement compliance’, therefore, would be to delay implementation of the Article 15 mechanism and allow current practices, suitably modified, to continue for as long as their performance is satisfactory.
Call for Papers
Settlement and Unsettlement -
The Ends of World War I and their Legacies
The armistice of November 11, 1918, is widely commemorated as the end of World War I, but that event was only part of a protracted process with far-reaching consequences. A series of peace treaties, starting with Brest-Litovsk in 1918 and continuing through Lausanne in 1923, brought the war to a stuttering conclusion. The 1919 Paris Peace Conference and the agreements it produced rank as the most prominent and most controversial aspect of that process. Scholarly debate has long focused on the Paris conference in the context of debates on war guilt, the burdens imposed on defeated Germany, or President Woodrow Wilson’s failure to realize his vision of a liberal world order. This focus was in line with addressing questions such as the rise of fascism, the causes of World War II, or the roots of the Great Depression. Yet the postwar settlements reached far beyond West and Central Europe. They shaped a new global order that, some hoped, would prevent another disastrous global war.
Many consequences of that reorganization are still being felt. The postwar order and the new respect paid to the right of self-determination sparked hopes and expectations while setting up the forces that would deflate them. Regardless of whether the postwar settlements led directly to the renewal of world-wide conflict in the 1930s, as many have charged, they created structures in which the later conflicts arose. A century later, participants in conflicts across the world still trace their grievances back to the pivotal period 1917–1923.
The centenary of the 1918 Armistice in 2018 provides a perfect occasion to reassess the postwar settlement’s global repercussions in the twentieth and twenty-first centuries. In light of the fresh scrutiny historians have recently given to the world these settlements created, the time is ripe for such a reassessment. That scrutiny commonly centers on the consequences of the Paris Peace Conference itself, the clash of different visions of an international order in full view of a newly assertive global public. The peace settlements created new forms of international organization and global governance. They spelled the end of centuries-old continental empires—the Habsburg and the Ottoman empires—and stripped Germany of its overseas colonies and important parts of its European territory. They initiated the remaking of the political landscape not only of Europe and the Middle East but also of colonized regions far from the wartime fronts, leading to forced population movements and “minority problems” of an unprecedented kind and scale. Political turmoil in Russia and parts of Central Europe brought about the specter of revolution and triggered Western military interventions in paramilitary conflicts and civil wars. International organizations, above all the League of Nations, came into existence after the war that were intent on overseeing interstates relations and creating political, economic, legal, labor, and other codes to regulate them. At the same time, a wide range of groups resisted the postwar political order and advocated alternative systems of sovereignty and sources of power.
With the Armistice, the idea of national self-determination began its global career as a pivotal principle of world order as it fed hopes of peoples around the world for an end to alien rule. The Wilsonian program inspired and mobilized people as far from the negotiations in Paris as East Asia. Enduring problems arose from the dismemberment of the Ottoman Empire, and challenges to colonialism evolved in response to the creation of the League of Nations’ Mandates Commission. Disappointment with the international order would fuel conflicts for decades.
Events and decisions linked to the end of World War I continue to resonate throughout the world today. The 1920 Treaty of Trianon, for instance, remains a point of reference in nationalist rhetoric in many of the successor states to the Hapsburg Empire. The refusal by the U.S. Congress to ratify the Treaty of Versailles and to approve membership in the League of Nations is still held up as the textbook example of the country’s deep-seated ambivalence about its role as a world power. The Greek-Turkish “population exchange” sanctioned by the 1923 Treaty of Lausanne initiated a century of mass expulsions. The reorganization of the Middle East into several proto-nation-states sowed the seeds of regional conflicts that now, a century later, seem as firmly rooted as ever.
In view of exciting new and emerging scholarship on the legacies of World War I, the Max Weber Foundation, the German Historical Institute (GHI) in Washington DC, the American Historical Association (AHA) with the National History Center (NHC), and the German Historical Association propose to convene a conference that takes a fresh look at the events of 1917–1923, at the immediate post-Versailles period and at the cultural, social, and political ripples that the postwar settlements sent across the globe in subsequent decades. The conference seeks to reassess the global dimensions of the postwar moment and toexamine both the short- and long-term consequences of the end of World War I from comparative and transregional perspectives.
Themes to be discussed at the conference include, but are not limited to:
- the suite of treaties and international agreements that sought to bring the military conflicts between belligerent states to an end and their lasting consequences for the states and regions whose boundaries and relations they codified;
- the regime of international organizations that were created or strengthened to oversee postwar relations between states, among them the League of Nations, its Mandate Commission, the International Labor Office, the International Red Cross, and the international court in The Hague;
- the idea of national self-determination as a founding principle of the postwar world order, its reverberations and consequences in different world regions and for different population groups, and its uses by different groups of actors;
- the postwar expansion and transformation of imperial rule by the victorious powers and the struggle against that rule by subject peoples;
- the plans for social and economic postwar order and responses to expectations of disadvantaged and disempowered social groups: demobilization and demilitarization, postwar economic order, gender order, etc.
The conference will take place from March 22-24, 2018 in Washington, DC, at the German Historical Institute. The conference language is English. The organizers will cover travel and lodging expenses.
Please send a short abstract of no more than 400 words and a brief academic CV with institutional affiliation in one file by March 31, 2017 to hudson(at)ghi-dc.org.
- Erika De Wet, Invoking obligations erga omnes in the twenty-first century: progressive developments since Barcelona Traction
- Jeremy Sarkin, Putting in place processes and mechanisms to prevent and eradicate enforced disappearances around the world
- Michelle Barnard & Werner Scholtz, Fiat Lux! Deriving a right to energy from the African charter on human and peoples' rights
- Odile Juliette Lim Tung, Genetically modified organisms and trans-boundary damage: a two-pronged compromise for redress under the liability and redress protocol to the Cartagena Protocol
- Mikhalien Du Bois, Protection of intellectual property rights as human rights in international law
Friday, February 10, 2017
In 1967, Israel annexed East Jerusalem, and extended the application of its law to the area. Israeli law allows the Palestinian residents of East Jerusalem to acquire Israeli nationality, but for the most part, they have refrained from doing so and are stateless. Consequently, there is a large population of permanent non-nationals. Long-term residence without nationality is increasingly perceived as undesirable by international institutions. It jeopardizes the whole gamut of human rights, including those that are not nationality-dependent. This contribution describes the phenomenon of permanent residence without nationality on a global level. It then considers the legal norms applicable, in particular the right to remain within the state, which is reserved almost exclusively to nationals. It therefore focuses on the right to acquire nationality based on long-term residence, and on arrangements for security in residence without nationality.בשנת 1967 ישראל ספחה את מזרח ירושלים, והחילה בה את המשפט הישראלי. על פי המשפט הישראלי, תושבי מזרח העיר יכולים לרכוש אזרחות מכוח ישיבה, אך רובם נמנעים מלעשות זאת, והם חסרי אזרחות. כתוצאה מכך, ישנה אוכלוסיה גדולה של תושבי קבע שאינם אזרחי המדינה. מצב זה נתפס בזירה הבין לאומית כבלתי רצוי. היעדר האזרחות מסכן את מימושן של זכויות רבות, גם כאלו שאינן באופן פורמלי תלויות-אזרחות. הממאר מתאר את התופעה של תשובות קבע ללא אזרחות בזירה הבין לאומית. הוא דן בנורמות המשפטיותהחולשות על הסוגיה, במיוחד הזכות להישאר בשטח המדינה, אשר מוקנית באופן כמעט בלעדי לאזרחים. לפיכך מתמקד המאמר בזכות לרכוש אזרחות מכוח תושבות ארוכת-טווח, ובהסדרים לביטחון בתושבות ללא אזרחות
Note: Downloadable document is in Hebrew.
- Andrew Kerner, Morten Jerven, & Alison Beatty, Does it pay to be poor? Testing for systematically underreported GNI estimates
- Daniel McDowell, Need for speed: The lending responsiveness of the IMF
- Dursun Peksen & Robert G. Blanton, The impact of ILO conventions on worker rights: Are empty promises worse than no promises?
- Simone Dietrich & Amanda Murdie, Human rights shaming through INGOs and foreign aid delivery
- Diana Panke, Speech is silver, silence is golden? Examining state activity in international negotiations
- Geoff Dancy & Christopher J. Fariss, Rescuing Human Rights Law from International Legalism and Its Critics
- Chelsea Lee & Robert L. Ostergard, Jr., Measuring Discrimination Against LGBTQ People: A Cross-National Analysis
- Payam Akhavan, Is Grassroots Justice a Viable Alternative to Impunity? The Case of the Iran People's Tribunal
- Andrea Schapper, Children's Rights Implementation as Multi-Level Governance Process
- Vincenzo Ferrone, The Rights of History: Enlightenment and Human Right
- Rowland Brucken, Conservative at Birth: The Creation and Paradoxes of United States Human Rights Policy During World War II
- Courtney Hillebrecht & Scott Straus, Who Pursues the Perpetrators? State Cooperation with the ICC
- Francesca Laguardia, Deterring Torture: The Preventative Power of Criminal Law and Its Promise for Inhibiting State Abuses
Thursday, February 9, 2017
There is a growing literature revolving around the role of non-State actors in the international law-making process. The starting point of this article is that although informal international law-making may not be legally binding, it would be unwise to dismiss it as legally irrelevant. Informal law-making can be relevant with respect to conceptualising and applying existing law, as well as guiding future regulation. The present discussion is placed in the context of cyberspace and, more specifically, the Internet standardisation bodies’ informal law-making functions when creating Internet protocols by setting Internet standards. The article addresses the legitimacy and the ongoing work of the Internet Advisory Board and Internet Engineering Task Force in setting Internet standards with the aim to protect Internet users from mass surveillance and serious threats to privacy online. The article makes two main arguments. First, the effective protection of online privacy cannot be understood only in terms of compliance with legal frameworks but– in practice - that also needs to be secured through technological means. Second, in the area of online privacy informal law-making and international law converge in a distinctive way. Internet standards should not necessarily be seen as “living a parallel life” to law or as displacing or merely complementing the law. Technical standards and international law can actively inform one another and converge in their application. The analysis explores the implications of the Internet’s technical features to policy-making and legal reasoning by discussing State and judicial practice. The article demonstrates how the technical perspective on privacy informs and enriches the manner in which the legal advisor argues about privacy, the legislator articulates the interests at stake and the judge and practitioner interpret and apply international human rights law.
Call for Papers: Contributions to Special International Law Issue Featuring Professor Harold Koh
This summer, the Washburn Law Journal will be publishing a special Issue on the topic of America’s relationship with international law. Renowned International Law Scholar and former Dean of the Yale Law School Harold Hongju Koh will be writing the keynote article addressing international law and the process of treaty formation and compliance under the Trump administration. Several other renowned scholars writing in this area have already agreed to join Prof. Koh in contributing to this Issue.
The Editorial Board of the Washburn Law Journal is inviting other scholars to contribute companion articles for this special Issue.
Washburn Law is honored that Professor Koh will be introducing his keynote article during a lecture at the annual Foulston Siefkin Lecture Series on March 31, 2017. The Editorial Board of the Washburn Law Journal will provide material to selected authors to ensure that articles can, to some extent, be informed by and responsive to Prof. Koh’s thesis.
Interested participants should email an abstract of between 500-750 words by March 15, 2017. Abstracts should indicate whether the piece will be a full article or an essay-length submission, and should be emailed to Claire Hillman at firstname.lastname@example.org. They must include the author’s name, title of the paper, institutional affiliation, and contact information.
Authors already planning to submit articles this submission cycle that fit the topic of this Issue may also submit the article directly to the Claire Hillman, or send an email notifying the Journal that a relevant article has been submitted via ExpressO or Scholastica.
From the abstracts and/or articles submitted, the Editorial Board of the Washburn Law Journal will select 3-5 article-length or essay-length pieces to publish in Issue 3, Vol. 56 (August 2017). Authors will be notified of the acceptance of their submissions and proposals by March 20, 2017. A first draft of the completed article will be due no later than April 31, 2017.
- Jürgen Basedow, The International Unification of Private Law in the Era of Globalization
- Ulrich G. Schroeter, Present and Future of Uniform Sales Law
- Stefan Huber, Secured Transactions Law: A Transnational Perspective
- Andreas Maurer, Uniform Law in the International Transport of Goods
- Alexander Peukert, Unification of Intellectual Property Law: Structures, Actors and Aims
- Susanne Aigner, The Union Customs Code
- Maarja Saluste, Rules of Origin and the Anti-Dumping Agreement
- Dylan Geraets, Accommodating Global Value Chains in the Union Customs Code: Towards Rules of Origin That Better Reflect Business Realities?
- Giorgia Orsi, The Union Customs Code and Innovation in Italian Customs Procedures
- Tom Cachet, The World Trade Organization Trade Facilitation Agreement: Legal Consequences and Impact on the Union Customs Code
- From the Board: How Much Democracy Can Economic Integration Bear?
- S. Dennis Engbrink, The European Union’s External Action: Coherence in European Union Foreign Policy Despite Separate Legal Orders?
- Ceren Zeynep Pirim, A Neverending Story: The Free Movement of Turkish Workers Within the European Union
- Elisa Faustinelli, Purely Internal Situations and the Freedom of Establishment Within the Context of the Services Directive
- Timo Koivurova, Qin Tianbao, Sébastien Duyck & Tapio Nykänen, Introduction
- Qin Tianbao & LI Miaomiao, Strengthening China's Role in the Arctic Council
- Ren Shidan, Legal Issues in Arctic Scientific Research: A Chinese Perspective
- Julia Jalo & Tapio Nykänen, Chinese Arctic Discussion-a Micro Reading of World Affairs
- Xiaoyi Jiang & Xiaoguang Zhou, China and Maritime Sovereignty and Rights Issues in the Arctic
- Lassi Heininen, China and Finland in the Globalised Arctic
- Tapio Nykänen, A Common Heritage-the Place of the Arctic in the Chinese and Finnish Discourses
- Timo Koivurova, Waliul Hasanat,Piotr Graczyk & Tuuli Kuusama, China as an Observer in the Arctic Council
- Sébastien Duyck, Conservation of Marine Living Resources and Fisheries Management in the Arctic
- Adam Stepien, Incentives, Practices and Opportunities for Arctic External Actors' Engagement with Indigenous Peoples
- Nengye Liu & Kamrul Hossain, China and the Development of International Law on Arctic Shipping
- Sébastien Duyck, Tapio Nykänen, Timo Koivurova & Qin Tianbao, Concluding Chapter
- Seán Butler, 'To Unite Our Strength to Maintain International Peace and Security': The International Response to the Syrian Civil War & the Global Discourse on State Sovereignty
- Andrea Broderick, The Right to Inclusive Education: Article 24 of the UN Convention on the Rights of Persons with Disabilities and the Irish Experience
- Amina Adanan, Accountability for Violations of International Humanitarian Law in Domestic Courts: Can War Crimes be Prosecuted in Ireland?
- Notes and Comments
- Susan Power, Occupying the Continental Shelf?-A Note Considering the Status of the Continental Shelf Delimitation Agreement Concluded between Turkey and the TRNC during the Belligerent Occupation of Northern Cyprus
Wednesday, February 8, 2017
- David Dyzenhaus, Dugardian legal theory
- Christof Heyns, & Thomas Probert, Casting fresh light on the supreme right: the African commission's general comment no. 3 on the right to life
- Arnold Pronto, Human rights in the work of the international law commission
- Dire Tladi, Pursuing a brave new world for the oceans: the place of common heritage in a proposed law of the sea treaty
- Philippe Sands, Climate change and the rule of law: adjudicating the future in international law
- James Crawford, The International Law Commission's articles on diplomatic protection revisited
- Annemarieke Vermeer-Kunzli, Immunities and consent to jurisdiction in international law
- Christopher Greenwood, The development of international law by national courts
- Maurice Kamto, The status of municipal law before the world court in the light of recent cases
- Larissa van den Herik, The individualization of enforcement in international law
- Tiyanjana Maluwa, South Africa in Africa: assessing South Africa's participation in organization of African unity and African Union treaties
- Abdulqawi A. Yusuf, Unconstitutional change of government and the public law of Africa: outlawing Coups d'Etat in Africa
- Ivan Shearer, State succession in relation to treaties: looking back and looking forward
- Trevor P. Chimimba, United Nations Security Council Resolution 1373 (2001) as a tool for criminal law enforcement
- Hennie Strydom, Counter-terrorism sanctions and human rights
- Max du Plessis, The Omar Al-Bashir case: exploring efforts to resolve the tension between the African Union and the International Criminal Court
- William Schabas, International Criminal Law and the Middle East
- Mia Swart, Fighting apartheid on a second front: Dugard's work on the occupied Palestinian territories
- Neil Boister, Global trends towards the simplification of extradition procedures
The dynamics of enforcing international criminal justice through the International Criminal Court (ICC) has become a challenging exercise in Africa. At times the uneasy relationship between the ICC, the African Union and a few influential African states has given rise to concerns about the future of international criminal justice in general, and in Africa in particular. Still, the enthusiasts for international criminal justice as enforced by the ICC, interpret the challenges that the ICC is encountering in Africa as part of the growing pains of a new institution in the international system.
The distractors have already prepared the ICC’s obituary. One of the criticisms levelled against the ICC, and which is the motivation for, and central theme behind, this book is that it has morphed and ceased to be an independent legal institution instead becoming a political tool utilised by politically powerful states in the West against their political opponents in Africa. More specifically the Court is alleged to be selectively enforcing international criminal law by merely officially opening investigations and prosecutions in Africa. Although this book recognises that selective implementation of criminal justice is acceptable both at the domestic and international level, it analyses the legal and political factors behind the Court’s focus on international crimes committed in Africa when there are other situations to which the court should potentially turn its attention, such as in Syria, Afghanistan or the Occupied Palestinian Territories.
The book seeks to determine whether such a focus implies that Africa has the monopoly over international crimes or whether African victims or perpetrators are any different from those in the Middle East? In addition the book attempts to uncover the basis and the validity of the African Union and some African states’ criticisms of the ICC.
With the transition to the commercial-scale exploitation of deep seabed minerals, the International Seabed Authority’s obligation to protect the marine environment is being tested. In The International Seabed Authority and the Precautionary Principle, Aline L. Jaeckel provides the first in-depth analysis of the Authority’s work in regulating and managing deep seabed minerals.
This book examines whether and to what extent the Authority is implementing the precautionary principle in practice. This includes the development of adequate environmental protection standards as well as procedural safeguards and decision-making processes that facilitate risk assessment and risk management. In doing so, the author offers an insightful example of how the precautionary principle can be translated into a practical management tool.
Judicial Interpretation of Tax Treaties is a detailed analytical guide to the interpretation of tax treaties at the national level. The book focuses on how domestic courts interpret and apply the OECD Commentary to OECD Model Tax Convention on Income and on Capital. Adopting a global perspective, the book gives a systematic presentation of the main interpretive proposals put forward by the OECD Commentary, and analyses selected cases decided in domestic tax systems in order to assess whether and how such solutions are adopted through national judicial process, and indeed which of these are of most practical value. The book operates on two levels: firstly it sets out a clear and comprehensive framework of tax treaty law, which will be an important tool for any tax practitioner. Secondly, the book provides crucial guidance on issues of tax treaty law as applied at domestic level, such as investment or business income, dispute resolution and administrative cooperation.
Treaty-based investor-state arbitration (or ISDS more generally) is an increasingly topical issue, as FDI flows continue to grow, especially across Southeast Asia and the rest of the Asian region, and host states have begun to experience some claims brought by disgruntled foreign investors.
The symposium, organised by the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS) and the Sydney Centre for International Law (SCIL), with sponsorship from the Sydney Southeast Asia Centre and Herbert Smith Freehills, builds on the lively and timely conference funded by Chulalongkorn University's ASEAN Studies Centre in Bangkok on 18 July 2016, which compared the experiences and policy debates in each of the ten ASEAN member states. Those country reports are now being revised for review and eventual publication in a leading journal, with versions then being combined with papers on pan-Asian investment treaties and arbitration to be presented on 16 February 2017, for a co-edited book published by the same legal publisher.
This upcoming symposium will bring together leading experts from Southeast Asia, North Asia, India and Oceania, including several from institutional partners of The University of Sydney. It will help round off a major cross-institutional and interdisciplinary research project into international investment dispute management more generally, funded by the Australian Research Council since 2014.
Tuesday, February 7, 2017
The Hague Justice Journal First Edition in Association with the International Criminal Tribunal for the former Yugoslavia launches its call for submissions
The editorial board of The Hague Justice Journal (HJJ) is delighted to announce that it is soliciting submissions for its 2017 volume relating to the ICTY’s legacy in this its final year of operations. Such submissions will include selected papers from the ICTY Legacy Conference due to be held from 23-24 June 2017 in Sarajevo, Bosnia, and will be published in Autumn 2017. The HJJ undertakes this endeavor in formal cooperation with the ICTY, in line with a number of legacy-related activities being organized in 2017 by the ICTY and by the Peace, Justice and Security Foundation.
The objective of The Hague Justice Journal is to promote a profound collective reflection on the problems and challenges facing international law. Rejuvenated in 2016 by a group of international lawyers, the Journal addresses the major dilemmas of international justice from inter alia the perspectives of law, international relations, jurisprudence, criminology, sociology, penal philosophy, and the history of international judicial institutions. It is an online law journal intended for the benefit of academics, practitioners, graduate and post-graduate students, government officials, as well as the many people working for international organizations.
For more information on the journal please see its website.
In keeping with the general theme of the ICTY Legacy Conference selected papers for publication should ideally address:
If who are interested in publishing a paper in the journal you should get in touch by email to the Chief Editor, Dr Anna Marie Brennan at: email@example.com
- Institutional and Administrative Legacy – e.g. Witness protection and support – post testimony support: needs and resources; reparations and victim status; gender sensitive witness support.
- Normative Legacy – Synergies, cross-fertilization, and discrepancies between the jurisprudence of the ICTY, national jurisdictions, regional courts, and other international courts and tribunals; with a special focus on: how ICTY jurisprudence has influenced national jurisdictions, for instance in the region of the former Yugoslavia; and how domestic law and jurisprudence has informed international justice.
- Operational Legacy/Complementarity – Challenges faced by the Office of the Prosecutor in investigating and prosecuting conflict-related crimes, including challenges in building leadership cases and obtaining access to evidence; OTP's capacity building challenges and outcomes; perspectives on operational challenges facing national jurisdictions and potential/demonstrated solutions (including through lessons learned and applied from OTP's experience).
- Legacy on Access to Justice for Women – The evolution of jurisprudence on conflict-related sexual violence; participation of women in the justice process; working with NGOs and civil society to identify witnesses; protection of sensitive witnesses/victims; compensation mechanisms for sexual violence victims in national jurisdictions.
- Participatory Legacy – Defence in international criminal trials at international and national courts; defence investigations; defence organizations and offices; rights of the accused.
- Historic Legacies – Historic value of the extensive records of the ICTY; records as a means of combating denial; access to ICTY records and archives in the region; importance of user friendly information sharing and judicial databases.
- Non-Judicial Legacy – The ICTY and its limitations; to what extent can a judicial institution contribute to peace, reconciliation and deterrence/prevention or otherwise non-repetition of crimes; how to fill the gap through non-judicial mechanisms; the importance of memorialisation and the consolidation of the rule of law through capacity building.
- Leaving a Legacy: Outreach Activities – What should be the scope and goals of outreach on the ICTY legacy after the closure of the Tribunal; what are the needs of local communities in respect of the ICTY's legacy; what are the responsibilities of different societal actors – e.g. politicians, journalists, the legal community, civil society?
If you are interested in contributing to the volume please submit a 300-word abstract of the paper by 28 April 2017 to firstname.lastname@example.org along with the following information:
1. The author’s name, title, and affiliation (if any)
2. The author’s curriculum vitae/résumé; and
3. The author’s contact details including phone number or email address.
Abstracts will be reviewed and successful contributors will be invited to submit first drafts of papers by email to: email@example.com in Microsoft Word format by 1 August 2017.
Papers between 6,000-12,000 words are invited. In exceptional cases, the editorial board will increase this limit to 15,000 words for Articles that make an important contribution to the field.
All manuscripts are double-blind peer reviewed. Receipt of all manuscripts will be acknowledged as soon as possible. All manuscripts should be double-spaced with a single spaced abstract and footnotes. Heavy footnoting is discouraged. Authors are invited to follow OSCOLA, which is the journal’s style guide, which may be obtained from the editorial assistant upon request, or from the journal’s web page.
- Research Articles
- Hamish van der Ven, Steven Bernstein, & Matthew Hoffmann, Valuing the Contributions of Nonstate and Subnational Actors to Climate Governance
- Christian Downie, Fighting for King Coal’s Crown: Business Actors in the US Coal and Utility Industries
- Todd A. Eisenstadt & Karleen Jones West, Indigenous Belief Systems, Science, and Resource Extraction: Climate Change Attitudes in Ecuador
- Alejandro Esguerra, Silke Beck, & Rolf Lidskog, Stakeholder Engagement in the Making: IPBES Legitimization Politics
- Yoomi Kim, Katsuya Tanaka, & Shunji Matsuoka, Institutional Mechanisms and the Consequences of International Environmental Agreements
- Coraline Goron & Cyril Cassisa, Regulatory Institutions and Market-Based Climate Policy in China
- Book Review Essay
- Timo Koivurova, Protecting the Environment of the Final Frontiers
Stompfe: Die Gestaltung und Sicherung internationaler Investor-Staat-Verträge in der arabischen Welt am Beispiel Libyens und Katars
Libyen und Katar gehören beide zu den finanzstarken Ländern der arabischen Welt. Aufgrund der enormen wirtschaftlichen und finanziellen Machtstellung haben diese Staaten auch rechtspraktisch zunehmend an Bedeutung gewonnen. Investitionsprojekte mit der Größenordnung von mehreren Milliarden Euro zeigen die ökonomische Relevanz dieser Staaten für westliche Unternehmen. Induktiv können anhand dieser Länder typische Problemstellungen internationaler Investitionstätigkeiten in der arabischen Welt analytisch dargestellt werden. Als wesentliche Herausforderung für die Vertragsgestaltung sind die Interpendenz von nationalem und internationalem Recht sowie die Synthese von Recht und Politik hervorzuheben. Dieses Werk unterzieht die Grundstrukturen des national-arabischen und internationalen Investitionsrechts einer kritischen Betrachtung und zeigt dabei auf, inwieweit die Schwächen dieser Regelungsebenen durch die Inanspruchnahme kautelarjuristischer Mechanismen kompensiert werden können.
Libya and Qatar both belong to the financially powerful countries of the Arab world. Due to their economic and financial position of power, these countries have become increasingly significant, especially regarding legal issues. Investment projects with the scale of several billion Euros underline the importance of these countries for western companies. Typical problems and risk structures of foreign investment activities in the Arab world can be shown inductively with reference to the legal system of Libya and Qatar. A key challenge for the drafting of contracts is a strong interdependence of national and international law, as well as the synthesis of law and politics. This publication analyses the fundamental structures of national Arab investment law and international investment law, and thereby illustrates how the infirmities of these levels of regulation can be compensated by the availment of precautionary measures.
This paper examines both scholarly debates and empirical evidence about the normative and sociological legitimacy of one of the oldest, busiest and most powerful international courts in the world: the Court of Justice of the European Union (CJEU). With respect to normative legitimacy, the paper identifies and applies three criteria for international court legitimacy, namely that courts should be fair and unbiased, that their rulings should be politically acceptable and legally sound, and that they should operate openly and transparently. While the CJEU has historically enjoyed a high degree of normative legitimacy, I find, recent decades have witnessed the emergence of a vigorous debate regarding overlapping charges of bias, of judicial activism and poor legal reasoning, and of opacity at the Court. By contrast with normative legitimacy, sociological or descriptive legitimacy measures diffuse support for the Court among its various audiences. The study of public attitudes toward the Court, I argue, is highly sensitive to measurement issues, but in general paints a picture of a public support that has been historically widespread but shallow and quite fragile, and I demonstrate that this support has decreased in the past decade, as the Court has been caught up in a broader crisis of EU legitimacy.
This short essay highlights, from a legal theoretical perspective, both the risks and the potential benefits of instrumentalising the history (and historiography) of law in international investment law. Investment law scholars should study their field’s theoretical foundations and historical bases, but all of these fields of study should be kept separate. In other words, we need avoid abusing history and historiography, but we need not avoid instrumental uses of history altogether. This essay first discusses the dangers, using critical legal historians’ ideologisation of investment law as example. It then points to potential usefulness of historical research, in this case of the history of doctrines (Dogmengeschichte). It helps us to see that the historical lineage of customary investment law is in considerable doubt.
Monday, February 6, 2017
What is economic emergence? How different are emerging economies from emerging markets and other groupings like the BRICS? Does law matter in their trajectories and, if so, why is the relation of these countries to international trade and investment law of particular importance to the understanding of the novel transformations and challenges faced by this fast changing and complex field of international law? Based on a course taught at the IHEI and a large number of related researches and publications, this short book proposes to recompose the emerging countries patchwork through the study of a limited number of chosen States and a few of their recent positions and practices in the matter of international trade and investment law. These paths in a patchwork will show that these emerging countries’ selective and negotiated participation in the World Trade Organisation (WTO) reveals a strategic will to preserve a normative autonomy to serve the needs of development (I), normative autonomy, which is also found in the approach of an international investment law that is regarded with a certain critical distance (II) and is illustrated in a variety of concrete trade and investment situations (III).
Call for Papers
ESIL 13th Anniversary Conference on
Global Public Goods, Global Commons and Fundamental Values:
The Responses of International Law
Naples, 6-9 September 2017
European Society of International Law Interest Group
on International Human Rights Law Session
‘Human Rights: Fundamental Values in International Law?’
6 September 2017
On the occasion of the 13th ESIL Conference in Naples, the ESIL Interest Group on International Human Rights Law invites submissions for a half day workshop on ‘Human Rights: Fundamental Values in International Law?’ on 6 September 2017 in Naples. The 2017 Naples Conference seeks to explore how international law responds to global public goods, global commons and fundamental values. In line with our approach to each annual conference, the ESIL Interest Group on International Human Rights Law will examine the theme of the annual conference from a human rights perspective.
In our call, we ask whether human rights operate as fundamental values in international law and if so, to what extent and in what form, in which fora and with what type of consequences? What does it mean to hold that human rights are fundamental values in international law? How does the characterization of human rights as a fundamental value play out in different branches of international law? Do human rights play a role as fundamental values beyond offering content for ius cogens norms? Is their status mere rhetoric against the background of fragmentation of the international legal order? If human rights are fundamental values, are they in competition with other fundamental values? In this workshop, we are interested in papers that study the use of human rights in nonhuman rights international legal contexts, and by non-human rights international courts and bodies. We are also interested in papers that seek to trace the history and development of human rights as fundamental values in general international law and how specialized bodies in human rights, such as the Inter-American Court on Human Rights espouse human rights as fundamental values when they interact with other branches of international law. The selection panel will give priority to paper submissions that focus on issues that are not covered by the fora and agorae of the main conference (please see conference website for more information) and to those who do not have a speaking slot in the main conference.
The Application Process
We invite submissions of abstracts of no more than 500 words. Selection will be based on how closely tied the abstract is to the theme of the workshop; scholarly merit; and with the view to producing an engaging workshop. All submissions are expected to be submitted as draft papers ahead of the workshop.
Each submission should include the following in the same document:
(a) short bio containing the author’s name, institutional affiliation, contact information and e-mail address;Applications should be submitted by 20 April 2017 to firstname.lastname@example.org All applicants will be notified of the outcome of the selection process by 20 May 2017. Accepted full papers are due by 20 August 2017.
(b) an abstract of no more than 500 words;
Please note that the ESIL Interest Group on International Human Rights Law is unable to provide funds to cover the conference registration fee or related transport and accommodation.
Il presente volume si affianca a quello intitolato 'Società militari private e contractors nel diritto internazionale', anch'esso edito da Giappichelli, con l'intento di diffondere, come è nel costume e negli scopi universitari, i risultati di ricerche condotte nell' ambito degli insegnamenti di diritto internazionale e di diritto dell'Unione europea attivi presso la Facoltà di Economia dell'Università di Roma 'La Sapienza' e finalizzate all'analisi di fenomeni e problematiche di rilevanza internazionale. Fino a qualche tempo fa, alcuni di questi fenomeni - ed è il caso della pirateria - si ritenevano in via di estinzione o del tutto scomparsi e comunque sottratti alla ribalta mediatica, nonché all'attenzione dell' opinione pubblica. Le cronache degli ultimi anni (si pensi all'incidente che ha coinvolto, in India, i fucilieri italiani di marina) dimostrano, invece, che i pirati godono di ottima salute e che il loro rinnovato attivismo è dovuto, almeno in parte, alle stesse cause che sono alla base dell'incontrastato successo dei contractors: l'espansione dei traffici commerciali conseguente al consolidamento del mercato globale, la diluizione dello Stato-apparato, la crescente rilevanza delle attività svolte dai privati e l'impatto da esse prodotto sull'ordinamento internazionale.
The book offers a theoretically justified and pragmatic concept of the so-called 'lex mercatoria' contributing to the debate concerning the existence of this law as an autonomous, a-national and universal legal system established by trade practice. This new work equips commercial arbitrators and counsel with a formula to 'recognize' and apply a rule of the lex mercatoria in practice. It argues that a rule of the lex mercatoria is established if there is a majority congruent behaviour within a business community followed out of fear of criticism and a willingness to criticize others in case of deviation. This two-element test increases legal certainty and potentially reduces the time and costs of proving the rule. Case studies are included to illustrate the practical implications of the analysis and more difficult issues such as burden of proof, admissible evidence and the role of written harmonization measures are also considered. The approach adopted in the book reduces the elusiveness of the concept and offers an analysis which makes the lex mercatoria clearer for scholars and more attractive for practitioners.
Crawford: Tracing the Historical and Legal Development of the Levée En Masse in the Law of Armed Conflict
Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regards to determining who may legitimately participate in armed conflict. The concept originated during the revolutionary wars in America and France, and was incorporated into the first codified rules of armed conflict. However, despite the prevalence of the category of levée en masse in the modern laws of armed conflict, there have been few, if any, instances of levée en masse taking place in modern armed conflicts. This article examines how and why the category of levée en masse developed. In doing so, this paper situates the concept and evolution of levée en masse within the history of international humanitarian law more generally.
- Faizel Ismail, The Changing Global Trade Architecture: Implications for Africa’s Regional Integration and Development
- Patricia Garcia-Duran & Leif Johan Eliasson, The Public Debate over Transatlantic Trade and Investment Partnership and Its Underlying Assumptions
- Michael O. Moore, Carbon Safeguard? Managing the Friction Between Trade Rules and Climate Policy
- Jadranka Petrovic & Benjamin Grunberg, Intersecting Trade, Politics and Human Rights: The Negotiation Phase of the Australia-China Free Trade Agreement
- Juscelino F. Colares & William P. Canterberry, US–COOL: How the Appellate Body Misconstrued the National Treatment Principle, Severely Restricting Agency Discretion to Promulgate Mandatory, Pro-Consumer Labeling Rules
- Chenguo Zhang, Enhancing the Standards of Civil Damages Remedies to Fight Copyright Piracy in International Trade? A Commentary on the Proposed TRIPS-Plus Damages Reforms in the Third Amendment to the Copyright Law of the PRC Through Comparison with the US and EU
- Desmond McNeill, Pepita Barlow, Carolyn Deere Birkbeck, Sakiko Fukuda-Parr, Anand Grover, Ted Schrecker, & David Stuckler, Trade and Investment Agreements: Implications for Health Protection
Sunday, February 5, 2017
The article discusses the pending extradition case of eight Turkish military officers who, on the night of the recent failed coup d’état in Turkey, defected and resorted to Greece. The analysis addresses the public emergency in Turkey, insofar as it is relevant for the extradition case, against the European Convention on Extradition, the European Convention on Human Rights and the Greek Supreme Court’s case law. The discussion finds that, according to the circumstances currently prevailing in Turkey, there are substantial grounds for believing that the eight Turkish military officers will run a real risk of treatment contrary to art.3 of the ECHR, a real risk of a flagrant denial of justice and a risk of being subjected to the death penalty. The article concludes that it will be ill-advised for Greek authorities to grant Turkey’s extradition request.
Starting with the year 2015 Europe has come under unprecedented migratory pressure that put into question the very structure of the Common European Asylum System (CEAS). In fact, according to the so-called Dublin regime the country of first entrance is responsible for carrying out the asylum procedure leaving it open how the burden the granting of asylum involves should eventually be shared between the EU Member States (MS). Both the Geneva Convention on the Rights of Refugees of 1951 (GCR) as the CEAS are built upon the implicit assumption that refugee protection should be of a temporary nature but in reality protection has most often become permanent. In order to avoid excessive burdens for frontline states in Europe and for Europe as a whole the call for the introduction of burden-sharing mechanisms is becoming ever louder. In this context, quota systems have been presented as ideal problem solution instruments. The European Union has tried to establish such mechanisms but so far all these attempts proved to be insufficient and they met with considerable resistance by some EU MS. As a consequence, the insufficiencies of the GRC and the CEAS become evident and the international asylum system as a whole becomes imperilled. The growing resistance in Europe against the uncontrolled immigration both by asylum seekers and by economic migrants is strongly opposed by considerable parts of the population. Some countries like Austria consider therefore the unilateral introduction of a quota system for asylum seekers. Such a system would violate international and EU law but on the other hand the respective discussion has triggered a necessary debate about a reform of the international refugee system involving some form of a fairer burden-sharing.