Saturday, June 9, 2018
The Achmea judgment by which the Court of Justice of the European Union declared the arbitration clause of the Netherlands-Slovakia bilateral investment treaty to be incompatible with European law has led to many unanswered questions. Against this background, the International Investment Law Centre Cologne (IILCC) is pleased to invite academics, practitioners and students to join us for a discussion on the consequences deriving from Achmea for bilateral investment treaties between EU member states (“Intra-EU BITs”), pending arbitration cases and the future of international investment protection in Europe.
Friday, June 8, 2018
- Ingvild Bode & Hendrik Huelss, Autonomous weapons systems and changing norms in international relations
- Delf Rothe & David Shim, Sensing the ground: On the global politics of satellite-based activism
- Julia Welland, Joy and war: Reading pleasure in wartime experiences
- William A. Callahan, The politics of walls: Barriers, flows, and the sublime
- Nicola Leveringhaus & Kate Sullivan de Estrada, Between conformity and innovation: China’s and India’s quest for status as responsible nuclear powers
- Gilberto Carvalho Oliveira, The causal power of securitisation: an inquiry into the explanatory status of securitisation theory illustrated by the case of Somali piracy
- William C. Wohlforth, Benjamin de Carvalho, Halvard Leira, & Iver B. Neumann, Moral authority and status in International Relations: Good states and the social dimension of status seeking
- Hans Agné, Democratism: Towards an explanatory approach to international politics
- Jeffrey S. Lantis & Carmen Wunderlich, Resiliency dynamics of norm clusters: Norm contestation and international cooperation
Kassoti: International Legal Scholarship and the Quest for Integrating Democratic and Participatory Principles in the Definition of Global Public Goods
This contribution purports to critically examine the ways in which modern international legal scholarship has come to grips with the question of bridging the ‘democratic participation gap’ in the context of defining and prioritising global public goods. It begins by asserting that core tenets of legal positivism, such as State sovereignty and consent, are deeply undemocratic, or that, at a minimum, they are capable of operating in a deeply undemocratic way, thereby casting doubt on whether classic international law can be seen as the solution to the problem of democratic participation. Against this background, the article continues by exploring two alternative theoretical frameworks for bridging the ‘participation gap’. The global administrative law project is examined and rejected as its main focus on accountability, rather than democracy, implies that it lacks ambition when it comes to the question of broadening decision-making processes. The focus turns next to global constitutionalism. It is argued that, in reality, this version of constitutionalism does not really offer any new analytical and normative insights; traditional legal thinking is anything but unfamiliar with the conceptual distinction between direct and indirect participation. The article concludes by canvassing some remarks on a common mindset of the discipline: the discipline’s knee-jerk response to the challenge of defining global public goods illustrates the unease felt by international lawyers to deal with questions of global governance without transferring them into the realm of law.
- Michael Hamilton & Antoine Buyse, Human Rights Courts as Norm-Brokers
- Anna E Chadwick, Gambling on Hunger? The Right to Adequate Food and Commodity Derivatives Trading
- Sejal Parmar, Freedom of Expression Narratives after the Charlie Hebdo Attacks
- Steven Greer, Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law? A Reply to Graffin and Mavronicola
- Vladislava Stoyanova, Causation between State Omission and Harm within the Framework of Positive Obligations under the European Convention on Human Rights
- Lourdes Peroni, The Protection of Women Asylum Seekers under the European Convention on Human Rights: Unearthing the Gendered Roots of Harm
- Domenico Carolei, Survival International v World Wide Fund for Nature: Using the OECD Guidelines for Multinational Enterprises as a Means of Ensuring NGO Accountability
- Róisín Burke, Due Diligence and UN Support for African Union Security Forces: Peacekeeper Sexual Violence Exploitation and Abuse
- Ai Kihara-Hunt, Addressing Sexual Exploitation and Abuse: The Case of UN Police – Recommendations
- Andres Eduardo Fernandez-Osorio, The Participation of Colombia in United Nations’ Multidimensional Peace Operations
- Cornelius Friesendorf, Gendarmeries in Multinational Operations
- Lila Wade, Can You Pay for Peace? The Role of Financing Frameworks in Effective Peace Operations
- Natalie Staff, The Severability Regime and Its Customary Elements: A Presumption Rebuttable ‘at Any Time’
- Heini Tuura, Finland’s Changing Stance on Armed Measures: How Does it Correspond to International Law?
- Joanna Nicholson, The Role Played by External Case Law in Promoting the Legitimacy of International Criminal Court Decisions
- Michael Bogdan, Regulation Brussels Ia and Violations of Personality Rights on the Internet
Wednesday, June 6, 2018
It is a central tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party that illegally launches a war benefits from all the same rights as a party that must defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible and that defenders should have more rights and fewer responsibilities than aggressors. The equal application doctrine retains the support of legal scholars, however, because they reasonably fear that applying different rules to different warring parties will substantially reduce overall compliance with the international humanitarian law system as a whole. My article seeks to bridge these divides. It does so by shifting focus from the application of international humanitarian law rules to the enforcement of these rules. Although a vast body of scholarship has centered on the equal application doctrine, none of it considers the way in which that doctrine intersects with post-conflict enforcement of international humanitarian law. On the one hand, such neglect is unsurprising because, historically, there was no post-conflict enforcement of international humanitarian law violations. However, in the last twenty-five years, a series of international criminal tribunals have been established to prosecute large-scale violations of international humanitarian law, among other crimes. The creation of these tribunals provides a powerful opportunity to re-conceptualize and refashion the equal application doctrine. Specifically, this article advocates unequally enforcing international humanitarian law as a means of bridging the divide between the moral imperatives that excoriate the equal application doctrine and the practical imperatives that maintain it.
This occasional paper provides an account of the development of the international legal system over the next three decades. The paper identifies three overarching legal trends — the globalisation of law, constitutionalisation and fragmentation — that will influence the future of the international legal order. Based on an assessment of these trends and the trajectories of certain branches of international law, the paper suggests that, by the year 2050, the period of classic international law will be drawing to a close. We will have entered a new stage of hybridity where the actors, processes and institutions of classic international law intermingle with a wide range of transnational actors, processes and institutions. As legal complexity, fragmentation and interdependence increase over time, it will become more difficult for the international community to take deliberate action to adjust elements of the international legal system with the help of the classic tools available.
The findings of the paper are drawn from a research project on the future development of the law commissioned by the Development, Concepts and Doctrine Centre of the United Kingdom Ministry of Defence in 2017. The research was carried out at Exeter Law School by a group of experts consisting of Catherine Caine, Matthew Channon, Hitoshi Nasu, Michael Schmitt and Helena Wray, led by Aurel Sari and Agnieszka Jachec-Neale. The paper also draws on the outcome of a workshop hosted by the Exeter Centre for International Law in March 2018 to discuss these findings. The event was supported by the Economic and Social Research Council.
This book addresses the disparity between positive non-treaty law and its scholarly assessment in the area of moral concepts, understood as altruistic as opposed to reciprocal legal obligations. It shows how scholars are generously willing to assert the existence of a rule of international law, thereby moving further away from actual state practice, not taking into account the factors of legal rhetoric and the core survival interests of the state in the formation of custom and general principles of law. The main argument is that such moral concepts can simply not manifest themselves as non-treaty sources of international law from a dogmatic perspective. The reason is the inherent connection between the formation of the non-treaty sources of international law and state interest that makes it difficult, if not impossible, to assess state practice or opinio juris in the case of altruistic obligations. The book further demonstrates this finding by looking at two cases in point: Human rights and humanitarian exceptions to the prohibition of force. As opposed to the majority of existing works on the subject, State Interest and the Sources of International Law takes a bigger-picture approach to a number of distinct problems in international law scholarship by looking at the building blocks of international relations on the one hand, and merging this with sources doctrine on the other.
Tuesday, June 5, 2018
- Ulf Linderfalk, What Are the Functions of the General Principles? Good Faith and International Legal Pragmatics
- Stephan W. Schill, Investitionsschutz in EU-Freihandelsabkommen: Erosion gesetzgeberischer Gestaltungsmacht? Eine rechtsvergleichende Analyse im Mehrebenengeflecht von Verfassungs-, Unions- und Völkerrecht am Beispiel des EU-Freihandelsabkommens mit Kanada (CETA)
- Anna Petrig, Sind die parlamentarische Genehmigung und das Referendum im Außenbereich auf völkerrechtliche Verträge beschränkt? Eine Untersuchung anhand von Kompetenztransfers an Völkerrechtsakteure
- Themistoklis Tzimas, Legal Evaluation of the Saudi-Led Intervention in Yemen: Consensual Intervention in Cases of Contested Authority and Fragmented States
- Sébastien Touzé, "Le droit européen des droits de l'homme sera International o une sera pas? Pour une approche autopoïétique du droit international
- Gabrielle Marceau, L'interprétation évolutive par le juge OMC : sophisme ou nécessité?
- Batyah Sierpinski & Hélène Tourard, Les trente ans du droit au développement de l'ONU ou l'inaccessible quête
- Marie-Clotilde Runavot, La notion d'organisation internationale à l'épreuve d'un ornithorynque institutionnel : quelques réflexions sur l'ambiguïté institutionnelle de la CPI
- R. Tafotie, Quand l’exigence de substance détermine la nationalité d’une société : enseignements d’une sentence CIRDI
- R. Ouedraogo, L’effectivité du droit à la santé au Burkina Faso à l’épreuve du droit international des droits de l’homme
- F. Seatzu & E. Pintus, L’Organisation internationale de la francophonie à l’épreuve des droits de l’homme
- T. Mathlouthi, La protection de la propriété intellectuelle au regard de la sharî’a - Étude à partir de l’exemple des émirats arabes unis
- W. Tadjudje, Les enjeux de la définition de la société en droit OHADA
- From the Board, The Nativist Turn One Year On: Is the System Holding?
- Kamala Dawar, Legal Issues of Economic Disintegration: Government Procurement and BREXIT
- Christian Riffel, The Chapeau: Stringent Threshold or Good Faith Requirement
- Evangelia Psychogiopoulou, Cultural Heritage in European Union Law and Policies
- Philip Hainbach, The CJEU’s Opinion 2/15 and the Future of EU Investment Policy and Law-Making
- Alessandro Rosanò, Wrong Way to Direct Effect?: Case Note on the Advisory Opinion of the Court of the Eurasian Economic Union Delivered on 4 April 2017 at the Request of the Republic of Belarus
- Vincent Beyer, Direct Taxes and the GATS: Substantive and Procedural Defences for Non-compliant Income Tax Measures
- Jong Bum Kim, Adaptation of Internal Trade Requirements in RTAs: Substandard Internal Trade Liberalization
- Eva van der Zee, Disciplining Private Standards Under the SPS and TBT Agreement: A Plea for Market-State Procedural Guidelines
- Dukgeun Ahn, Koohyun Kwon, Jihong Lee, & Jee-Hyeong Park, An Empirical Analysis on the WTO Safeguard Actions
- Ida Madieha Abdul Ghani Azmi , Heng Gee Lim, Pek San Tay, & Cheng Peng Sik, Trans-Pacific Partnership Agreement Minus One and Enhanced Criminal Penalty for Online Copyright Piracy: Malaysia’s Options
- Fenghua Li, The Driving Forces of the Convergence of WTO Dispute Settlement Mechanism and International Investment Arbitration
- Weihuan Zhou & Delei Peng, EU – Price Comparison Methodologies (DS516): Challenging the Non-Market Economy Methodology in Light of the Negotiating History of Article 15 of China’s WTO Accession Protocol
Monday, June 4, 2018
Conventional wisdom has it that, in recent years, the legalized mechanism of dispute settlement before the World Trade Organization (WTO) has been “busier than ever”, “a victim of its own success”. This paper uses hard data to assess the WTO’s current caseload and examines how it has evolved since the WTO’s creation in 1995. We also forecast panel and Appellate Body (AB) caseload ten years from now using different scenarios.
WTO dispute settlement does, indeed, currently experience a peak in terms of the total number of cases pending before panels and the AB (as of 30 April 2018, respectively, 18 and 8). However, this is not due to an increase in new cases filed (new consultation requests markedly reduced, from a high of 50 in 1997 to “only” 17 in 2017), but rather because pending cases take much longer to conclude as they have become more complex and are often delayed for lack of human resources. In addition, fewer cases filed get formally settled (from 20% in the first five years of the WTO to almost zero after 2014), appeal rates remain very high (on average 68%), and the share of follow-up disputes over compliance (DSU Art. 21.5) has markedly increased, all three factors leading to more (pending) caseload without actually more (new) cases filed, or more panel or AB reports issued (the number of reports produced per year has actually gone down, dropping from a peak of 26 panel reports and 13 AB reports in 2000, to “only” 13 panel reports and 6 Appellate Body reports in 2017).
WTO dispute settlement is also predominantly used (i) for certain types of disputes (45% of cases filed between 2012-2016 are trade remedy disputes, compared to only 23% between 1995-1999) and (ii) for disputes between a small subset of WTO members (20 WTO Members represent 85% of DSU participation as main party).
Looking forward, we forecast that the current glut in WTO caseload will not last. More specifically, after a temporary drop in 2019, we forecast a record-breaking spike in 2020-2022, after which WTO caseload will fall back and stabilize at numbers we have seen before. In none of the three scenarios we set out (“business as usual”, “back to normal”, “more settlements, less appeals”) is there reason to panic today (e.g. to massively hire additional, long-term WTO Secretariat staff; temporary hires to address the 2020-2022 spike would suffice). Moreover, relatively small improvements -- panels and the AB renewing compliance with timeframes set out in the DSU; the system improving on its “clearly preferred” solution of settlement, and parties exercising restraint when it comes to appealing panel reports (the assumptions under our “more settlements, less appeals scenario”) -- would bring WTO caseload down to surprisingly low levels (post-2021: 6-7 concurrent panels, and 1-2 concurrent AB proceedings). But there is also a “worst case scenario”: if WTO Members continue to fail to fill vacancies on the Appellate Body, WTO dispute settlement will grind to a halt in December 2019, at which time only 1 individual would remain on the AB, making it impossible for the AB to function.
Sunday, June 3, 2018
This article analyses comparatively the enforcement procedures of the Ecuadorian judgment in the famous Chevron case, related to environmental damages caused by oil drilling in Ecuador. Enforcement of the judgment was proposed in several American countries, such as the United States, Canada, Argentina and Brazil. The central issue is how private international law can assure the enforcement of a foreign decision related to human rights against a multinational business conglomerate. Central arguments used in the enforcement decisions concerned the legal separateness of subsidiaries and the public order exception. Some procedures are still pending final decision. The methodology used in this article involves a bibliographical and documental review, mainly of legislation and court decisions.
Jens Burkhard Funk untersucht die Aktivitäten des Internationalen Währungsfonds im Spannungsfeld von nationalem und internationalem Recht. Aufbauend auf einer dogmatischen Diskussion der grundlegenden Rechtsbegriffe bildet die Wirkung der IWF-Konditionalität auf die Souveränität der betroffenen Krisenstaaten einen Schwerpunkt der Arbeit, beispielhaft untersucht an der griechischen Finanzkrise. Als Ansatz für eine Lösung des verschuldungspolitischen Dilemmas wird die Einführung eines Insolvenzverfahrens für überschuldete Staaten diskutiert.
As Europe deals with a so-called 'refugee crisis', Australia's harsh border control policies have been suggested as a possible model for Europe to copy. Key measures of this system such as long-term mandatory detention, intercepting and turning boats around at sea, and the extraterritorial processing of asylum claims were actually used in the United States long before they were adopted in Australia. The book examines the process through which these policies spread between the United States and Australia and the way the courts in each jurisdiction have dealt with the measures. Daniel Ghezelbash's innovative interdisciplinary analysis shows how policies and practices that 'work' in one country might not work in another. This timely book is a must-read for those interested in preserving the institution of asylum in a volatile international and domestic political climate.
Adopting a comprehensive plan to fight tropical diseases, Brazil came across an unexpected hurdle: its international trade obligations. Its ban on the importation of used and recycled tires, which serve as mosquito breeding sites, was challenged by its trading partners in both the Southern Common Market and the World Trade Organization. Unfortunately for Brazil, the two international tribunals rendered conflicting rulings and Brazil was thus forced to choose between disregarding one of the rulings, or abandoning its plan in order to comply with both. Brazil’s story has been viewed as the epitome of the dangers of international law’s fragmentation, resulting from the proliferation of international legal regimes, and particularly international tribunals. Challenging this accepted narrative, this article argues that Brazil’s difficult situation served in fact as a catalyst of efforts of international legal integration. Rather than becoming paralyzed or turning its back on international law, Brazil remained committed to its international legal obligations and proactively and creatively worked to reconcile them without giving up its domestic agenda.
The article further challenges the claim, dominant in fragmentation literature, that international law is inevitably headed towards increasing fragmentation. I argue that, like Brazil, states faced with conflicting guidance from international legal regimes make efforts to find a common ground among their various obligations, one still compatible with their own goals. Furthermore, states then strive to convince their peers as well as international monitoring bodies of their proposed solution. In doing so, they promote harmonization of international legal norms and integration among international law’s different legal regimes.