This book critically analyses how arbitration cases, institutional rules and emerging codes of conduct in the international arbitration sector have dealt with a series of key arbitrator duties to date. In addition, it offers a range of feasible and well-grounded proposals regarding investment arbitrators’ duties in the future. The following aspects are examined in depth: the duty of disclosure the duty to investigate the duty of diligence and integrity, which in turn may be divided into temporal availability, a non-delegation of responsibilities, andadhering to appropriate behaviour the duty of confidentiality, and other duties such as monitoring arbitration costs, or continuous training. Investment arbitration is currently undergoing sweeping changes. The EU proposal to create a Multilateral Investment Court incorporates a number of ground-breaking developments with regard to arbitrators. Whether this new model of permanent “members of the court” will ever become a reality, or whether the classical exparte arbitrator system will manage to retain its dominance in the investment arbitration milieu, this book is based on the assumption that there is a current need to re-examine and rethink the main duties of investment arbitrators.
Saturday, March 30, 2019
Fach Gómez: Key Duties of International Investment Arbitrators: A Transnational Study of Legal and Ethical Dilemmas
National security policies are increasingly threatening the rules that govern trade and investment flows. This problem goes much deeper and is far more intractable than is suggested by current high-profile controversies, such as recent disputes over the Trump administration’s steel and aluminum tariffs. Governments worldwide have adopted national security policies that address an increasingly wide array of risks and vulnerabilities, including climate change, pandemic disease, cybercrime, terrorism, and threats to infrastructure, industry, and the media. And these policies are increasingly likely to conflict with trade and investment rules. In other words, while today’s high-profile controversies have focused on alleged abuses of national security in economic law, it is the potential for good-faith but novel national security claims that may pose a more significant and permanent threat to the system in the long run.
This Article is the first to systematically map the “new” national security challenge and to consider its implications for the reform of the economic order. It demonstrates that the expansion of national security policy in the twenty-first century undermines our existing models for separating security measures from ordinary economic regulation. What is needed, it argues, is a new model for reintegrating the economic order with the national security state. To that end, this Article identifies reforms that allow for some oversight of increasingly novel national-security claims, while preserving flexibility for governments to redefine their security policies in response to twenty-first-century threats.
- Transnational Food Security
- Emily Webster & Peer Zumbansen, Introduction: transnational food (in)security
- Hilal Elver, At the brink of famine in conflict and natural disaster zones: human rights approach to extreme hunger and malnutrition
- Michael Fakhri, Third world sovereignty, indigenous sovereignty, and food sovereignty: living with sovereignty despite the map
- Ifesinachi Okafor-Yarwood, The effects of oil pollution on the marine environment in the Gulf of Guinea—the Bonga Oil Field example
- Matthew Canfield, Compromised collaborations: food, fuel, and power in transnational food security governance
- Anne Saab, International law and feeding the world in times of climate change
- Giulia Claudia Leonelli, GMO risks, food security, climate change and the entrenchment of neo-liberal legal narratives
- Tomaso Ferrando, Financialisation of the transnational food chain: from threat to leverage point?
- Matias E Margulis, The World Trade Organization between law and politics: negotiating a solution for public stockholding for food security purposes
- Amy J. Cohen, Transnational legal methodology and domestic markets for food
- Anna Chadwick, Commodity derivatives, contract law, and food security
- Priscilla Claeys, The rise of new rights for peasants. From reliance on NGO intermediaries to direct representation
- Joanna Bourke Martignoni, Engendering the right to food? International human rights law, food security and the rural woman
- Nadia Lambek, The UN Committee on World Food Security’s break from the agricultural productivity trap
Kent, Skoutaris, & Trinidad: The Future of International Courts: Regional, Institutional and Procedural Challenges
- Avidan Kent, Nikos Skoutaris, & Jamie Trinidad, What Does the Future Hold for International Courts?
- Karen J. Alter, Critical Junctures and the Future of International Courts in a Post-Liberal World Order
- Pushkar Anand & Varsha Singh, India and International Dispute Settlement: Some Reflections on India’s Participation in International Courts and Tribunals
- Nanying Tao, China’s Attitude towards International Adjudication: Past, Present and Future
- Bill Bowring, The Crisis of the European Court of Human Rights in the Face of Authoritarian and Populist Regimes
- Nikos Skoutaris, ‘Taking Back Control? Brexit and the Court of Justice’
- Francesco Messineo, The Functions of the International Court of Justice: Tending to the Law While Settling Disputes?
- Zuzanna Godzimirska, Delegitimation of Global Courts: Lessons from the Past
- Armand de Mestral & Lukas Vanhonnaeker, The Future of Investor-State Dispute Settlement
- Joanna Nicholson, Learning lessons through the prism of legitimacy: What future for International Criminal Courts and Tribunals?
- Sondre Torp Helmersen, How the application of teachings can affect the legitimacy of the International Court of Justice
- David Yuratich, Towards Separate Opinions at the Court of Justice of the European Union: Lessons in Deliberative Democracy from the International Court of Justice and Elsewhere
- Iryna Marchuk, From Warfare to ‘Lawfare’: Increased Litigation and Rise of Parallel Proceedings in International Courts: A Case Study of Ukraine’s and Georgia’s Action Against the Russian Federation)
- Avidan Kent, Amicus Curiae Participation in International Proceedings: Forever Friends?
- Jason Rudall, Not Just a Wit, But a Cause of Wit in Others: The Influence of Human Rights in International Litigation
- The Future of International Courts: What Next?
Friday, March 29, 2019
Thuy, Welfield, & Trang: Building a Normative Order in the South China Sea: Evolving Disputes, Expanding Options
- Welfield & Le Thuy Trang, Introduction
- Andrew Scobell, Getting beyond slow boil in the South China Sea
- Michael Yahuda, Economic (asymmetrical) interdependence and territorial disputes
- Wu Xiangning & You Ji, China’s South China Sea strategy and Sino-US discord
- Leszek Buszynski, The South China Sea: An arena for great power strategic rivalry
- Vu Hai Dang, Entitlements of maritime features and the Paracels dispute revisited
- James Kraska, The exclusive economic zone and foot security for developing coastal states in the South China Sea
- Nguyen Thi Lan Anh, Constructions at sea: Impacts and legal regime
- Robert Beckman & Phan Duy Hao, Air defense identification zones: Implications for freedom of overflight and maritime disputes
- Jonathan G. Odom, Maritime claims in the South China Sea and freedom of navigation operations
- Vu Thanh Ca, A regional ocean governance framework for the integrated management of the environment and biological resources in the South China Sea
- Raphael P. M. Lotilla, Post-South China Sea arbitration challenge: Toward regional cooperation for the environmental sustainability of the East Asian seas
- Dylan Mair & Rachel Calvert, Energy drivers for offshore cooperation
- Jay Batongbacal, Different strokes for different folks: A second look at UNCLOS Part XV dispute settlement mechanisms and the South China Sea disputes
- Tran Truong Thuy, Conclusion
In the course of the 20th and 21st centuries, major offences committed by individuals have been subject to progressive systematisation in the framework of international criminal law. Proposals developed within the context of the League of Nations coordinated individual liability and State responsibility. By contrast, international law as codified after World War II in the framework of the United Nations embodies a neat divide between individual criminal liability and State aggravated responsibility. However, conduct of State organs and agents generates dual liability. Through a critical analysis of key international rules, the book assesses whether the divisive approach to individual and State responsibility is normatively consistent. Contemporary situations, such as the humanitarian crises in Syria and Libya, 9/11 and the Iraq wars demonstrate that the matter still gives rise to controversy: a set of systemic problems emerge. The research focuses on the substantive elements of major offences, notably agression, genocide, core war crimes, core crimes against humanity and terrorism, as well as relevant procedural implications.
This Article challenges and proposes refinements to the “unwilling or unable” doctrine. Governments after 9/11 have invoked the doctrine to justify the use of force in self-defense against non-state actors (NSAs) operating within the territory of nonconsenting states. Responding to criticism that it lacked substance and a legal foundation, Daniel Bethlehem famously developed more detailed principles to embed the policy firmly in law, strike a balance between the interests of target states and territorial states, and bridge the gap between scholars and policy makers. His principles were embraced by governments as reflecting custom. The effort was laudable, but the principles fell short of their objective, and they create a risk of destabilizing the jus ad bellum regime.
This Article notes that the principles do not reflect custom, and it examines some of the ways in which they are inconsistent with the established understanding of the jus ad bellum regime. Specifically, they: lower the threshold for what constitutes an armed attack; eviscerate the temporal component from the concept of imminence, thereby destabilizing the core principle of necessity; improperly import the law of state responsibility into the jus ad bellum analysis; and undermine the independence of the international humanitarian law (IHL) and the jus ad bellum regimes. Finally, the principles do not provide sufficient guidance on how or by whom a range of key determinations are to be made, particularly regarding the “ability” or “unwillingness” of the territorial state. The principles lump all these determinations together, and suggest that they may all be made unilaterally by the target state, governed only by a single, low reasonableness standard. All of this weakens the constraints of the jus ad bellum regime more generally, thus raising the risk of inter-state war.
The Article takes seriously the operational imperatives in dealing with the threat posed by terrorist organizations, but proposes refinements to the principles to address each of these problems, so as to achieve greater consistency with established principles of the jus ad bellum regime. It develops new ideas on imminence, and drawing upon theories of self-judgment in international law, it disaggregates the decisions that have to be made and proposes differentiated standards to govern their execution and later assessment.
Sassòli: International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare
International humanitarian law (IHL) protects persons and property affected by armed conflicts. Focusing on the controversies that impact IHL in practice, this much-anticipated book from leading expert Marco Sassòli discusses when IHL applies, its substantive rules, how to ensure its respect and whether the traditional distinction between international and non-international armed conflicts remains relevant.
Sassòli draws on a depth of practical experience to provide invaluable insight and comprehensive guidance on the rules protecting certain categories of persons (for example, civilians, wounded, etc.) during conflict and the rules governing different types of conduct (for example, occupation, naval warfare, etc.). The book examines how these rules interact with other branches of international law, such as human rights and international criminal law, and how the rules are applied to non-State armed groups. Cross-cutting issues, including terrorism, autonomous weapons, cyber warfare, gender and cultural heritage, are also addressed, providing readers with a well-rounded view of IHL and associated concerns.
Thursday, March 28, 2019
- Elinor Buys & Andrew Garwood-Gowers, The (Ir)Relevance of Human Suffering: Humanitarian Intervention and Saudi Arabia’s Operation Decisive Storm in Yemen
- Phillip J Drew, Blockade? A Legal Assessment of the Maritime Interdiction of Yemen’s Ports
- Grant Dawson & Evangelia Linaki, The Legal Challenges in the Mission to Remove the Remaining Chemical Weapon Stockpiles from Libya
- Rebecca Barber, Uniting for Peace Not Aggression: Responding to Chemical Weapons in Syria Without Breaking the Law
- Yasmine Nahlawi, Overcoming Russian and Chinese Vetoes on Syria through Uniting for Peace
- Viacheslav Liubashenko, Treatment of Foreign Investments during Armed Conflicts: The Regimes
Wednesday, March 27, 2019
- Louis Kotzé, Coloniality, neoliberalism and the Anthropocene
- Alf Hornborg, Colonialism in the Anthropocene: the political ecology of the money-energy-technology complex
- Mary Warnock, Loyalty to the planet: a matter of justice or of love?
- Rosemary Lyster, The idea of (Climate) justice, neoliberalism and the Talanoa Dialogue
- Louis Kotzé, The Anthropocene, Earth system vulnerability and socio-ecological injustice in an age of human rights
- Elena Blanco & Anna Grear, Personhood, jurisdiction and injustice: law, colonialities and the global order
- Maria Bargh & Estair van Wagner, Participation as exclusion: Māori engagement with the Crown Minerals Act 1991 Block Offer process
Samuel, Aronsson-Storrier, & Bookmiller: The Cambridge Handbook of Disaster Risk Reduction and International Law
The number, intensity, and impact of diverse forms of 'natural' and 'human-made' disasters are increasing. In response, the international community has shifted its primary focus away from disaster response to prevention and improved preparedness. The current globally agreed upon roadmap is the ambitious Sendai Framework for Disaster Risk Reduction 2015–2030, central to which is the better understanding of disaster risk management and mitigation. Sendai also urges innovative implementation, especially multi-sectoral and multi-hazard coherence. Yet the law sector itself remains relatively under-developed, including a paucity of supporting 'DRR law' scholarship and minimal cross-sectoral engagement. Commonly, this is attributable to limited understanding by other sectors about law's dynamic potential as a tool of disaster risk mitigation, despite the availability of many risk-related norms across a broad spectrum of legal regimes. This unique, timely Handbook brings together global and multi-sector perspectives on one of the most pressing policy issues of our time.
The United Nations Convention on the Rights of the Child is the most extensive and widely ratified international human rights treaty. This Commentary offers a comprehensive analysis of each of the substantive provisions in the Convention and its Optional Protocols on Children and Armed Conflict, and the Sale of Children, Child Prostitution and Pornography. It provides a detailed insight into the drafting history of these instruments, the scope and nature of the rights accorded to children, and the obligations imposed on states to secure the implementation of these rights. In doing so, it draws on the work of the Committee on the Rights of the Child, international, regional, and domestic courts, academic and interdisciplinary scholarly analyses.
Erpelding, Hess, & Ruiz Fabri: Peace Through Law: The Versailles Peace Treaty and Dispute Settlement After World War I
- Michel Erpelding, Introduction: Versailles and the Broadening of ‘Peace Through Law’
- Nathaniel Berman, Drama Through Law: The Versailles Treaty and the Casting of the Modern International Stage
- Thomas D Grant, The League of Nations as a Universal Organization
- Michael D Callahan, Preventing a Repetition of the Great War: Responding to International Terrorism in the 1930s
- Mamadou Hébié & Paula Baldini Miranda da Cruz, The Legacy of the Mandates System of the League of Nations
- León Castellanos-Jankiewicz, Negotiating Equality: Minority Protection in the Versailles Settlement
- Guy Fiti Sinclair, Managing the ‘Workers Threat’: Preventing Revolution Through the International Labour Organization
- Herbert Kronke, The Role of Private International Law: UNIDROIT and the Geneva Conventions on Arbitration
- Jean-Louis Halpérin, Article 231 of the Versailles Treaty and Reparations: The Reparation Commission as a Place for Dispute Settlement?
- Pierre d’Argent, The Conversion of Reparations into Sovereign Debts (1920–1953)
- Christian J Tams, Peace Through International Adjudication: The Permanent Court of International Justice and the Post-War Order
- Marta Requejo Isidro & Burkhard Hess, International Adjudication of Private Rights: The Mixed Arbitral Tribunals in the Peace Treaties of 1919–1922
- Michel Erpelding, Local International Adjudication: The Groundbreaking ‘Experiment’ of the Arbitral Tribunal for Upper Silesia
- Didier Boden, Resistance Through Law: Belgian Judges and the Relations Between Occupied State and Occupying Power
- Jennifer Balint, Neal Haslem, & Kirsten Haydon, The Work of Peace: World War One, Justice and Translation Through Art
- Daniel S. Margolies, Umut Özsu, Maïa Pal, & Ntina Tzouvala, Introduction
- John D. Haskell, Ways of Doing Extraterritoriality in Scholarship
- Péter D. Szigeti, In the Middle of Nowhere: The Futile Quest to Distinguish Territoriality from Extraterritoriality
- Sara L. Seck, Moving Beyond the E-word in the Anthropocene
- Maïa Pal, Early Modern Extraterritoriality, Diplomacy, and the Transition to Capitalism
- Kate Miles, "Uneven Empires": Extraterritoriality and the Early Trading Companies
- Richard S. Horowitz, Protégé Problems: Qing Officials, Extraterritoriality, and Global Integration in Nineteenth-Century China
- Mai Taha, Drinking Water by the Sea: Real and Unreal Property in the Mixed Courts of Egypt
- Ntina Tzouvala, "And the laws are rude, … crude and uncertain": Extraterritoriality and the Emergence of Territorialised Statehood in Siam
- Daniel S. Margolies, Imperial Reorderings in US Zones and Regulatory Regimes, 1934–50
- Austen L. Parrish, The Interplay between Extraterritoriality, Sovereignty, and the Foundations of International Law
- Ellen Gutterman, Extraterritoriality as an Analytic Lens: Examining the Global Governance of Transnational Bribery and Corruption
- Alice M. Panepinto, From Extraterritorial Jurisdiction to Sovereignty: The Annexation of Palestine
- Ezgi Yildiz, Extraterritoriality Reconsidered: Functional Boundaries as Repositories of Jurisdiction
Tuesday, March 26, 2019
Monday, March 25, 2019
Every international criminal tribunal, past or present, has had to face charges of legality and fairness deficits, victor’s justice, selectivity, neo-colonialism, or other criticisms undermining the legitimacy of the international criminal justice project. This chapter is centred not on the legitimacy (or otherwise) of international criminal justice as much as on the current discourses about legitimacy and on what they may bode for the future of the project. There has lately been more engagement with the critiques from the mainstream positions than ever before. Are the ‘mainstream defenders’ and ‘radical critics’ engaged in a genuine conversation and is rapprochement in sight? Can critical sensibility infiltrate the enterprise and repair it from within, or will it just be co-opted and lose transformative edge upon entering mainstream? Have critics tapped into the emancipatory potential of the project and do mainstream responses effectively address their concerns?
In 1822, the Russian Czar Alexander decided an arbitration between the United Kingdom and the United States over the fate of 5,000 enslaved persons who fled to British lines at the end of the War of 1812. American observers have asserted for more than a century that the Czar’s decision, which has gone down in history as one of the canonical Anglo-American arbitrations of the Early Republic, favored the United States. But did the U.S. really win? Secretary of State John Quincy Adams complained at the time that the decision was not sufficiently clear. And new debate has broken out in the historical literature. This article resolves the question, relying in part on new evidence from diplomatic archives in the United States and the United Kingdom. We show that, as a formal matter, the Czar sided with the United States, though the arbitration proved useful to U.K. statesmen as well. The curious case of the Czar and the slaves also poses a second puzzle about the relationship between slavery and the emergence of modern international law. Even as the U.K. was beginning to use international law to oppose the slave trade, the United States aimed to turn some of international law’s institutions into powerful bastions of support for slavery.
Shirazyan: Building a Universal Counter-Proliferation Regime: The Institutional Limits of United Nations Security Council Resolution 1540
The risk of Weapons of Mass Destruction materials falling into the hands of criminals continues to be a major security concern following 9/11. Efforts to curb the threat culminated in 2004 with U.N. Security Council Resolution 1540. Resolution 1540 created an international institution — the 1540 regime — that was intended to prevent WMD proliferation by closing legal gaps in every U.N. member state. In addition to prohibiting states from engaging in proliferation activities, the instrument obliges states to address WMD trafficking at home through both criminal law enforcement and regulatory oversight.
Since its creation, scholars and policy makers have come to view 1540 as an important foundation of the global nonproliferation and counter-terrorism regime, in part because 179 states have submitted domestic implementation country reports, and on average, countries report more than 145 new or existing domestic measures to comply with Resolution 1540 obligations. Yet, despite the alleged success of the 1540 regime, there are still gaps in the system. Drawing on fifty-two in-depth interviews, fieldwork, and observation data, this article presents a novel assessment of the 1540 regime’s development and performance.
It proceeds in four steps. First, it provides an assessment of 1540’s origins and its past performance, based on the 1540 Committee’s own metrics of success. Second, it demonstrates the regime’s weak performance, examining its effectiveness and accomplishments thus far. Third, it explains how the creation of the 1540 regime and its early institutional choices shaped its current structure and performance. In particular, how 1540’s legitimacy-building strategies have constrained the institution’s ability to effectively manage the implementation of the resolution. Finally, the article briefly explores options on how to strengthen 1540 regime to halt non-state actor proliferation.