The Governor's Dilemma develops a general theory of indirect governance based on the tradeoff between governor control and intermediary competence; the empirical chapters apply that theory to a diverse range of cases encompassing both international relations and comparative politics. The theoretical framework paper starts from the observation that virtually all governance is indirect, carried out through intermediaries. But governors in indirect governance relationships face a dilemma: competent intermediaries gain power from the competencies they contribute, making them difficult to control, while efforts to control intermediary behavor limit important intermediary competencies, including expertise, credibility, and legitimacy. Thus, governors can obtain either high intermediary competence or strong control, but not both. This competence-control tradeoff is a common condition of indirect governance, whether governors are domestic or international, public or private, democratic or authoritarian; and whether governance addresses economic, security, or social issues. The empirical chapters analyze the operation and implications of the governor's dilemma in cases involving the governance of violence (e.g., secret police, support for foreign rebel groups, private security companies), the governance of markets (e.g., the Euro crisis, capital markets, EU regulation, the G20), and cross-cutting governance issues (colonial empires, "Trump's Dilemma"). Competence-control theory helps explain many features of governance that other theories cannot: why indirect governance is not limited to principal-agent delegation, but takes multiple forms; why governors create seemingly counter-productive intermediary relationships; and why indirect governance is frequently unstable over time.
Saturday, July 4, 2020
Abbott, Zangl, Snidal, & Genschel: The Governor's Dilemma: Indirect Governance Beyond Principals and Agents
This book provides a timely and systematic study of reparations in international criminal justice, going beyond a theoretical analysis of the system established at the International Criminal Court (ICC). It originally engages with recent decisions and filings at the ICC relating to reparation and how the criminal and reparative dimensions of international criminal justice can be reconciled. This book is equally innovative in its extensive treatment of the significant challenges of adjudicating on reparations, and proposing recommendations based on concrete experiences. With recent and imminent decisions from the ICC, and developments in national courts and beyond, Miriam Cohen provides a critical analysis of the theory and emerging jurisprudence of reparations for international crimes, their impact on victims and stakeholders.
- Colloque « L’indépendance du juge national vue par les deux Cours européennes »
- F. Krenc, Allocution introductive
- D. Spielmann, Allocution introductive
- F. Biltgen, L’indépendance du juge national vue depuis Luxembourg
- O. De Schutter, Changements climatiques et droits humains : l’affaire Urgenda
- E. Lambert, Comment rendre crédible et effective la protection des droits humains écologiques par le Conseil de l’Europe ?
- R. De Gouttes, Regards comparatifs sur le Comité des Nations Unies pour l’élimination de la discrimination raciale et la Commission européenne contre le racisme et l’intolérance
- C. Macq, L’ordre public et la sécurité nationale comme instruments de contrôle étatique en matière migratoire : quelles limites la jurisprudence européenne fixe-t-elle à l’exercice de ces prérogatives ...
- L’institut De Droit Européen Des Droits De L’homme (idedh) - Université De Montpellier, Les juridictions de l’Union européenne et les droits fondamentaux - Chronique de jurisprudence (2019)
- D. Roets, Les conditions de détention en France dans le collimateur de la Cour européenne des droits de l’homme : coup de tonnerre ou… coup d’épée dans l’eau ?
- C. Jadot, À propos des observations finales du Comité des droits de l’homme concernant le sixième rapport périodique de la Belgique
- A. Ernoux, À propos des observations finales du Comité des droits économiques, sociaux et culturels concernant le cinquième rapport périodique de la Belgique
- A-C. Rasson, À propos des observations finales du Comité des droits de l’enfant concernant les cinquième et sixième rapports périodiques de la Belgique
This book theorizes the ways in which states that are presumed to be weaker in the international system use the International Criminal Court (ICC) to advance their security and political interests. Ultimately, it contends that African states have managed to instrumentally and strategically use the international justice system to their advantage, a theoretical framework that challenges the “justice cascade” argument. The empirical work of this study focuses on four major themes around the intersection of power, states' interests, and the global governance of atrocity crimes: firstly, the strategic use of self-referrals to the ICC; secondly, complementarity between national and the international justice system; thirdly, the limits of state cooperation with international courts; and finally the use of international courts in domestic political conflicts.
Casey: Nationals Abroad: Globalization, Individual Rights, and the Making of Modern International Law
It is a fundamental term of the social contract that people trade allegiance for protection. In the nineteenth century, as millions of people made their way around the world, they entangled the world in web of allegiance that had enormous political consequences. Nationality was increasingly difficult to define. Just who was a national in a world where millions lived well beyond the borders of their sovereign state? As the nineteenth century gave way to the twentieth, jurists and policymakers began to think of ways to cut the web of obligation that had enabled world politics. They proposed to modernize international law to include subjects other than the state. Many of these experiments failed. But, by the mid-twentieth century, an international legal system predicated upon absolute universality and operated by intergovernmental organizations came to the fore. Under this system, individuals gradually became subjects of international law outside of their personal citizenship, culminating with the establishment of international courts of human rights after the Second World War.
- Fabiola Jiménez Morán Sotomayor, Medidas para optimizar la instrumentación de la Convención de las Naciones Unidas sobre el Derecho del Mar por parte de México
- Virdzhiniya Petrova Georgieva, La crisis de la Organización Mundial del Comercio: problemas e (im) posibles soluciones
- Daniel Sandoval Cervantes, Lex Petrolea, transnacionalización de la regulación de los hidrocarburos y geopolítica de la energía
- Daniel Iglesias Márquez, Empresas, derechos humanos y el régimen internacional del cambio climático: la configuración de las obligaciones climáticas para las empresas
- Rosalía Ibarra Sarlat, Indeterminación del estatus jurídico del migrante por cambio climático
- Ruth Martinón & Isabel Wences, Corte Interamericana de Derechos Humanos y pobreza. Nuevas incursiones a la luz del caso Hacienda Brasil Verde
- Cecilia Giovannetti Lugo & Cristina Montalvo Velásquez, Vulnerability of Special Agreements Signed by Non-State Armed Groups in Non-International Conflicts
- Rodrigo Labardini, The Legal Definition of the Caspian Sea
- Díckar Bonyuet Lee & Yaritza Pérez Pacheco, Sobre la independencia de los tribunales arbitrales CIADI
- Siddharta Legale, A Corte Interamericana de Direitos Humanos nos anos 80: Uma “Corte” Pedro Nikken?
- Carlos Ruiz Miguel & Yolanda Blanco Souto, Una visión de la MINURSO. Antecedentes, evolución y perspectivas
- Alejandra Marlene Gómez Barrera, Marco internacional del derecho penal para menores de edad
- Thais Novaes Cavalcanti & Ana Thereza Meireles Araújo, Derecho al desarrollo de los pueblos indígenas y Estado plurinacional: contribución de Guamán Poma de Ayala y Francisco de Vitoria
- Yadira Castillo Meneses, ¿Los Estados cómo demandantes en el arbitraje de inversión basado en tratados? Comentario al laudo Urbaser vs. Argentina
- Kayamba Tshitshi Ndouba, El andamiaje del regionalismo internacional penal africano: problemas y perspectivas
- Alan Matías Feler, ¿Condenados a moverse entre fronteras? Hacia nuevos paradigmas de la regulación internacional en materia de desplazamientos internos forzados
Many international obligations are subject to exceptions. These can be expressed in several ways: an obligation may be vitiated by the presence of one of its constitutive negative requirements, an obligation may be set aside by the application of another more specific rule, or an actor might have a right to act in a certain way notwithstanding a contrary obligation. Exceptions are also of fundamental practical importance: for example, they affect the allocation of the burden of proof.
This volume provides a systematic and analytic study of exceptions to legal obligations in international law and defences for breaches of these obligations. It features contributions written by legal philosophers, who introduce various theoretical approaches to the role of exceptions, and scholars of international law, who elaborate on generic issues applicable to exceptions in international law as well as examine specific issues arising from exceptions in their respective areas of expertise. Topics covered include the use of force, international criminal law, human rights, trade, investment, environment, and jurisdictional immunities.
In The Community of Interest Approach in International Water Law, Julie Gjørtz Howden identifies the normative elements of the community of interest approach (COIA) in international water law, and demonstrates how the approach can provide a legal framework for common management of international watercourses. Through analyses of various features of international watercourse cooperation and common management, the book determines the main principles and the underlying values of the COIA, and discusses how the approach contributes to the development of international water law.
Although the COIA is one of the central theories of international water law, very few analytical accounts of its legal features exist. Through The Community of Interest Approach in International Water Law, Howden offers a new and fresh approach to international water law that pulls together questions of holistic management, State sovereignty, public participation and river basin organisations into the analyses of the COIA and its relevance for managing transboundary watercourses today.
David: Cultural Difference and Economic Disadvantage in Regional Human Rights Courts: An Integrated View
More and more people are turning to human rights courts to seek protection against prejudice, disadvantage or exclusion on account of their cultural and economic particularities. Human rights courts are thus increasingly faced with the difficult task of deciding these cases, which raise a number of complex and contested legal questions. To what extent can courts accommodate cultural diversity, protect all kinds of groups or interfere in socio-economic policy? This book argues that one of the problems encountered in dealing with such cases is the courts’ tendency to assess them from a ‘compartmentalised’ or fragmentary perspective. This line of reasoning isolates or places into ‘boxes’ the various interrelated components of the right holder’s claim and the norms concerning the case to their detriment. This book critiques this reductionist approach that is out of touch with real life and which, moreover, tends to leave the roots of the alleged violations intact. To counterbalance this tendency, an innovative, integrated and person-centered approach to adjudicating claims of cultural difference and economic disadvantage is put forward. Drawing on the concepts of intersectionality, indivisibility and normative interdependence, the book presents specific notions and methods for approaching the appreciation of rights holders, harms and norms in a holistic manner. A wide selection of case law from both the European and the Inter-American courts of human rights supports the normative framework developed in this book. The sample mostly includes cases brought by Muslims, Roma, Travelers, indigenous peoples, afro-descendants and people living in poverty.
Cultural Difference and Economic Disadvantage in Regional Human Rights Courts: An Integrated View combines legal theory with practical insights in analysing both cultural an economic issues, which are rarely addressed together in human rights legal scholarship. It also offers a context-sensitive and relational view of human rights law that puts rights holders at the heart of the legal analysis, taking heed of the social structures within which legal frameworks operate. The book makes for compelling reading for students, academics and practitioners working in the fields of human rights law, jurisprudence, constitutional law, legal theory and feminist and cultural studies.
Emphatic of the importance of legal thought to the rise and fall of empires, this book highlights the centrality of empires to the development of legal thought. Comprehension of the development of legal thought over time is necessary for any historical, philosophical, practical, or theoretical enquiry into the subject today, it is argued here. When seen against the background of broad geopolitical, diplomatic, administrative, intellectual, religious, and commercial changes, law begins to appear very resilient. It withstands the rise and fall of empires. It provides the framework for the establishment of new orders in the place of the old. Today what analogies, principles, and authorities of law have survived these changes continue to inform much of the international legal tradition.
The failure to establish an international organisation with authority to adopt economic decisions for the world with regard to food security has cemented the position of private international corporations as free riders, contributing to precariousness. This article reviews the history and legacy of the nutrition approach in the law of International Organisations. The first promoters of international organisations working with food security shared the realist insight that food was a fundamental commodity in national and international economies. Therefore, they understood that the goal of greater distribution of food required massive structural economic reforms and truly global collaboration, starting with trade relations. Their nutrition approach was fundamentally a movement for free trade, advocating a single world economy and a single international organisation devoted to the economy, combined with the wish to secure a certain structural hierarchy among countries, articulated in turn as a programme for the (gradual) development of poorer economies. Their political realism was apparent in their wish for a hierarchical organisation of countries; and their utopianism in the idea that this hierarchy would eventually disappear. The nutrition approach also entailed a vision for a common economy and for growing political unity among countries, either on a regional or global basis, although sovereign nations resisted it and it never materialised.
Gáspár-Szilágyi, Behn, & Langford: Adjudicating Trade and Investment Disputes: Convergence or Divergence?
Recent trends suggest that international economic law may be witnessing a renaissance of convergence – both parallel and intersectional. The adjudicative process also reveals signs of convergence. These diverse claims of convergence are of legal, empirical and normative interest. Yet, convergence discourse also warrants scepticism. This volume contributes to both the general debate on the fragmentation of international law and the narrower discourse concerning the interplay between international trade and investment, focusing on dispute settlement. It moves beyond broad observations or singular case studies to provide an informed and wide-reaching assessment by investigating multiple standards, processes, mechanisms and behaviours. Methodologically, a normative stance is largely eschewed in favour of a range of 'doctrinal,' quantitative and qualitative methods that are used to address the research questions. Furthermore, in determining the extent of convergence or divergence, it is important to recognize that there is no bright line or clear yardstick for determining its nature or degree.
- J. Lawrence Broz, Zhiwen Zhang, & Gaoyang Wang, Explaining Foreign Support for China's Global Economic Leadership
- Roland Paris, The Right to Dominate: How Old Ideas About Sovereignty Pose New Challenges for World Order
- Dan Altman, The Evolution of Territorial Conquest After 1945 and the Limits of the Territorial Integrity Norm
- Jessica A. Stanton, Rebel Groups, International Humanitarian Law, and Civil War Outcomes in the Post-Cold War Era
- Research Notes
- Alisha C. Holland & Margaret E. Peters, Explaining Migration Timing: Political Information and Opportunities
- Sarah Sunn Bush & Lauren Prather, Foreign Meddling and Mass Attitudes Toward International Economic Engagement
- Eric Min, Talking While Fighting: Understanding the Role of Wartime Negotiation
Nedeski & Boutin: The Continuing Saga of State Responsibility for the Conduct of Peacekeeping Forces: Recent Practice of Dutch and Belgian Courts
In this contribution we reflect on two recent high-stakes cases before domestic courts on state responsibility for the actions and omissions of United Nations (UN) peacekeeping forces. Both cases are the result of efforts by surviving relatives of, respectively, victims of the Rwandan genocide in 1994 and victims of the Srebrenica genocide in 1995, to obtain reparation from troop-contributing states for the harm caused by UN peacekeeping troops’ failure to protect civilians. While the facts of both cases display some striking similarities, the courts reached opposite conclusions, with the Dutch Court holding the Netherlands responsible, and the Belgium Court rejecting any responsibility of the Belgium state. We critically review the two cases, and analyse in particular the approach of each court regarding attribution of conduct, paying particular attention to the specific factual circumstances of transition and withdrawal in both cases, and to the issue of attribution of legal omissions. We further present observations as to the question of shared responsibility in the context of peacekeeping operations.
- Abdulqawi Ahmed Yusuf, Engaging with International Law
- Michael Hamilton, The Meaning and Scope of ‘Assembly’ in International Human Rights Law
- Caroline Henckels, Permission to Act: The Legal Character of General and Security Exceptions in International Trade and Investment Law
- Efthymios Papastavridis, The Negotiations for A New Implementing Agreement Under the UN Convention on the Law of the Sea Concerning Marine Biodiversity
- Stijn Smet, Comparative Constitutional Interpretation of Religious Freedom
- Rumiana Yotova, Regulating Genome Editing Under International Human Rights Law
- Phoebe Okowa, The Pitfalls of Unilateral Legislation in International Law: Lessons from Conflict Minerals Legislation
- Shorter Articles
- Natalie Klein, Douglas Guilfoyle, Md Saiful Karim, & Rob McLaughlin, Maritime Autonomous Vehicles: New Frontiers in the Law of the Sea
- Ginevra Le Moli, The Human Rights Committee, Environmental Protection and the Right to Life
Trevisanut, Giannopoulos & Holst: Regime Interaction in Ocean Governance: Problems, Theories and Methods
A plethora of international bodies and international instruments regulate, influence and shape what is happening in the oceans. The many regimes involved and the resulting legal cacophony contribute to persisting challenges in ocean governance. Regime Interaction in Ocean Governance: Problems, Theories and Methods identifies the problems raised by regime interaction in ocean governance, discusses the relevant theoretical approaches, and explores possible solutions. It ultimately highlights how regime interaction in international law, specifically in oceans matters, not only consists of a problem to be solved, but also of a phenomenon to be better understood and benefited from.
Friday, July 3, 2020
Zannoni: Right or Duty to Live? Euthanasia and Assisted Suicide from the Perspective of the European Convention on Human Rights
The aim of this analysis is to direct the attention of legal scholars and legislators towards the legalisation of assisted suicide and euthanasia. This topic will sooner or later make inroads into the legal systems of all Council of Europe Member States, to the extent that is has not already. Two principles are at stake here: the protection of human life, on the one hand, and self-determination, on the other. The unconditional adherence to the principle of protection of life would entail that life should always be protected, even against the will of the person concerned. The unconditional adherence to the principle of self-determination would entail that each individual should have the right to die upon request, provided that their decision is based on their free will and informed. This article clarifies that, in their absoluteness, both alternatives should be rejected, and seeks to provide a reading of the limits of Member States' margin of discretion in end-of-life issues.
What does the Belt and Road Initiative mean for the existing multilateral organisations? What can it represent for the future of the European Union in the long run? What is the role of hard and soft law in the functioning of the Initiative? What does it represent from a legal theory perspective? This book aspires to contribute to the international debate by gathering scholars with different backgrounds (legal theorists, public international lawyers, comparative lawyers) in a way that they can offer their inputs and observations concerning the Belt and Road Initiative.
Braun: International Law in Revolutionary Upheavals – On the Tension between International Investment Law and International Humanitarian Law
In a decentralised system such as public international law with its many specialised subfields, the question of how to conceptualize the relationship and interplay of its distinct subfields becomes especially salient. Moreover, this question becomes even more acute when these subfields simultaneously claim authority and possibly arrive at quite different, if not conflicting, results. In the case of civil war, a foreign investor’s production site may be destroyed. This may lead to a breach of a bilateral investment treaty if government forces are deemed sufficiently responsible for such a destruction. However, in remarkable contrast to this, under international humanitarian law of non-international armed conflicts, if the destruction was justified under the principle of ‘military necessity’, then this state action could be considered lawful.If a conflict between the norms of both regimes arises here at all, should it be resolved by the principle of ‘lex specialis’? Or should rather a more informative approach be taken? Shall therefore the ‘extended war clause’ contained in bilateral investment treaties—which offer compensation for investments demonstrably destroyed in cases in which the destruction was not required by the ‘necessity of the situation’—be interpreted in the light of humanitarian law’s principle of ‘military necessity’? Or, are there compelling arguments for an autonomous treaty interpretation on its own terms? Finally, the question is raised whether the burden of proof remaining on the plaintiff investor in these specific constellations is compatible with the principle of procedural equality.
In this essay, I argue that the World Health Organization (WHO) has not been equipped with the necessary authority to adequately fulfill its mission. The WHO was built on the mistaken assumption that attaining adequate global health is a matter of high-level coordination. However, the challenge of global health governance is, crucially, also one of complex political cooperation. I distinguish between different types of cooperation problems faced by the WHO and explain why achieving global health calls for intrusive powers by a governing authority—powers that the WHO does not enjoy.
O Instituto Brasileiro de Direito do Mar – IBDMAR apresenta o seu podcast oficial: “Ao Mar!”. Criado por iniciativa da Diretoria do IBDMAR, o podcast “Ao Mar!” segue os objetivos de disseminar informações sobre o Direito do Mar no Brasil e no mundo, informar sobre as diversas temáticas relacionadas a áreas específicas do Direito do Mar, ampliar o acesso ao conhecimento sobre o estudo jurídico de mares e oceanos e divulgar as diversas atuações do Instituto Brasileiro de Direito do Mar.
O podcast é um tipo de mídia, predominantemente em áudio, que veicula conteúdos sob demanda e com direcionamento específico a um tipo de público e tema. As vantagens do podcast são a praticidade e a atemporalidade, já que o ouvinte pode ouvir seu conteúdo em qualquer dia e horário, basta acessar o episódio na sua plataforma de streaming favorita. Assim, “Ao Mar!” é um podcast atrelado ao Instituto Brasileiro de Direito do Mar e um novo projeto para disseminar cada vez mais informação e conhecimento sobre o Direito do Mar no Brasil, fazendo parte da agenda de atuação do Instituto Brasileiro de Direito do Mar – IBDMAR.
Os episódios do podcast “Ao Mar!” são quinzenais e cada um deles traz uma entrevista com um pesquisador e profissional do Direito do Mar. O primeiro episódio foi publicado no dia 15 de junho e trata sobre o Direito do Mar no Brasil e no mundo e atuação do Instituto Brasileiro de Direito do Mar – IBDMAR com o convidado entrevistado Tiago Zanella, atual Presidente do Instituto Brasileiro de Direito do Mar. Nele, Tiago Zanella fala sobre seu primeiro contato com o Direito do Mar, a decisão de seguir nessa importante área do Direito e as diversas formas de atuação do IBDMAR. Um dos destaques do episódio é o momento em que Tiago Zanella reflete sobre uma época em que a “doutrina virou as costas para o mar no Brasil” e como o IBDMAR têm atuado para mudar essa realidade. Ouça aqui.
O segundo episódio, publicado no dia 30 de junho, recebe o convidado Leonardo Subtil em uma entrevista sobre a relação entre o Direito do Mar e Filosofia, a experiência no Tribunal Internacional do Direito do Mar e sua atuação como Vice Presidente no Instituto Brasileiro de Direito do Mar. Ao longo do episódio, a perspectiva filosófica de Leonardo Subtil sobre o Direito do Mar se mostra inovadora no estudo jurídico de mares e oceanos. Destaca-se sua fala sobre como “o Direito do Mar deve servir como um instrumento de liberdade” e que “não há limites de transformação para o Direito do Mar”. Ouça aqui.
Coordenado por André de Paiva Toledo, um dos diretores do IBDMAR, o podcast é produzido e apresentado por Lillie Lima Vieira, graduanda em Direito na Escola Superior Dom Helder Câmara e em Geografia na Universidade Federal de Minas Gerais, estagiária do Instituto.
“Ao Mar!” é distribuído pelo Anchor e está disponível em todas as plataformas de streaming, escolha a sua favorita no site https://anchor.fm/aomaribdmar. Curta e compartilhe com os amigos para ficar informado sobre o Direito do Mar!
Thursday, July 2, 2020
- Special Issue: Justice and Accountability for Sexual Violence in Conflict: Progress and Challenges in National Efforts to Address Impunity
- Kim Thuy Seelinger, Close to Home: A Short History, and Rough Typology, of National Courts Prosecuting Wartime Sexual Violence
- Claudia Martin & Susana SáCouto, Access to Justice for Victims of Conflict-related Sexual Violence: Lessons Learned from the Sepur Zarco Case
- Kirsten Lavery, South Sudanese Perceptions of Justice: The Terrain Trial
- Daniele Perissi & Karen Naimer, Achieving Justice for Child Survivors of Conflict-related Sexual Violence in the Democratic Republic of the Congo: The Kavumu Case
- Daniela Kravetz, Accountability for Sexual and Gender-based Violence During Mass Repression and in Conflict: The Experiences of Argentina and Guatemala
- Jasenka Ferizović & Gorana Mlinarević, Applying International Experiences in National Prosecutions of Conflict-related Sexual Violence: A Case Study of Application of the ICTY Law, Findings and Practices in Prosecutions before the Court of Bosnia and Herzegovina
- Myriam S Denov & Mark A Drumbl, The Many Harms of Forced Marriage: Insights for Law from Ethnography in Northern Uganda
- Phuong N Pham, Mychelle Balthazard, & Patrick Vinck, Assessment of Efforts to Hold Perpetrators of Conflict-related Sexual Violence Accountable in Central African Republic
- Stephanie Barbour, Supporting Accountability for Sexual Violence in the Syria and Iraq Conflicts: Innovations, Good Practices, and Lessons Learned through Private Criminal Investigations
- Barbara Bianchini & Sara Rubert, A Sustainable Psychosocial Model to Support the National Investigation and Prosecution of Conflict-related Sexual Violence Crimes
- Marta Valiñas, The Colombian Special Jurisdiction for Peace: A Few Issues for Consideration When Investigating and Adjudicating Sexual and Gender-based Crimes
- Ingrid Elliott, Coleen Kivlahan, & Yahya Rahhal, Bridging the Gap Between the Reality of Male Sexual Violence and Access to Justice and Accountability
- Anne-Marie de Brouwer, Eefje de Volder, & Christophe Paulussen, Prosecuting the Nexus between Terrorism, Conflict-related Sexual Violence and Trafficking in Human Beings before National Legal Mechanisms: Case Studies of Boko Haram and Al-Shabaab
- Patricia Viseur Sellers & Jocelyn Getgen Kestenbaum, Missing in Action: The International Crime of the Slave Trade
- Ana Luísa Bernardino, The Discursive Construction of Facts in International Adjudication
- Patrick Dumberry, The Emergence of the Concept of ‘General Principle of International Law’ in Investment Arbitration Case Law
- Yvonne Guo, From Conventions to Protocols: Conceptualizing Changes to the International Dispute Resolution Landscape
- Ceren Zeynep Pirim, Reparation by Pecuniary Means of Direct Moral Damages Suffered by States as a Result of Internationally Wrongful Acts
- Current Developments
- Mariana Clara de Andrade, Precedent in the WTO: Retrospective Reflections for a Prospective Dispute Settlement Mechanism
- Xinxiang Shi & Yen-Chiang Chang, Order of Provisional Measures in Ukraine versus Russia and Mixed Disputes concerning Military Activities
- Wei Cai & Jonathan Kolieb, Between National Interests and Global Business: China’s Possible Reservations to the Hague Convention on Choice of Court Agreements
- Gloria Fernández Arribas, Dispute Settlement Mechanism in a Mixed-Mixed Agreement: Some Loose Ends. The Economic Partnership Agreement EU–ECOWAS–WAEMU
- Shen Wei, Parallel Proceedings under Chinese BITs: The Case of Hela Schwarz GmbH v PR China
Judges and scholars have long debated whether the European Court of Human Rights (the ECtHR or the Court) can only expand, never diminish, human rights protections in Europe. Recent studies have found that political backlashes and national-level restrictions have influenced ECtHR case law. However, analysing whether the ECtHR is shifting in a regressive direction faces an empirical challenge: How can we observe whether the Court is limiting rights over time if the ECtHR has never expressly overturned a prior judgment in a way that favours the government? We gain traction on this question by analysing all separate and minority opinions of the ECtHR Grand Chamber between 1998 and 2018. We focus on opinions asserting that the Grand Chamber has tacitly overturned prior rulings or settled doctrine in a way that favours the respondent state, which we label as ‘walking back dissents’. We find that walking back dissents have become significantly more common in the last decade, revealing that some members of the ECtHR themselves believe that the Grand Chamber is increasingly overturning prior judgments in a regressive direction.
Since its inception, the European Court of Human Rights has been at the forefront of the interpretative effort to clarify and develop human rights law in controversial factual and political contexts. Given this role, this book discusses some of the most important decisions the Court has issued on the right to life under Article 2 of the European Convention on Human Rights and includes a critical analysis of the judicial developments linked to those judgments.
This article examines the long-forgotten first book-length treatise on international law ever published by a woman in the history of international law. The first part places Concepción Arenal’s Ensayo sobre el Derecho de gentes (1879) in the historical context of the dawn of the international legal codification movement and the professionalisation of the academic study of international law. The second part surveys the scattered treatment that women as objects of international law and women’s individual contributions to international law received in international law histories up to the early twentieth century. It then draws many parallels between Arenal’s work and the influential resolutions of the first International Congress of Women in 1915 and surveys related developments during the interwar years. The conclusion highlights the need of readdressing the invisibility of women in international legal history.
International organizations have been actively involved in fighting the COVID-19 pandemic, covering issues ranging from governance in the health sector to the sovereign debt payment obligations of countries whose economy has been significantly affected. These actions are producing a rich collection of documents of international organizations. In actively addressing the challenges, the documents have stirred up debates and critiques that are of particular relevance to the law and practice of international organizations. OXIO is seeking to publish new headnotes regarding such new and current institutional practice (including but not limited to that of the World Health Organization) relating to the COVID-19 pandemic.
Oxford International Organizations (OXIO) is a database of annotated documents pertaining to the law of international organizations. The database is a unique and important repository, and the first of its kind, for acts and practices of international organizations which are of central importance to enquiries into international law, including international institutional law, and which have never been consolidated in one single tool. Learn more about the database on the About OXIO page.
Wednesday, July 1, 2020
- Malcolm N. Shaw (Univ. of Leicester), Inaugural Lecture: A House of Many rooms: The Rise, Fall and Rise Again of Territorial Sovereignty
- Maurice Kamto (Université de Yaoundé), Cours général : Le droit international et le polycentrism normatif
- Alan Boyle (Univ. of Edinburgh), International Law-Making for the Environment
- Chester Brown (Univ. of Sydney), Evidence in International Adjudication
- Olivier de Schutter (Université catholique de Louvain), L'émergence de la souveraineté alimentaire en droit international
- Jose Angelo Estrella Faria (United Nations), La protection des biens culturels religieux en droit international public et en droit international privé
- Anne Orford (Univ. of Melbourne), Civil War and the Transformation of International Law
- William Schabas (Middlesex Univ. London; Leiden Univ.), Relationships Between International Criminal Law and Other Branches of International Law
HDI es un podcast jurídico en español donde se abordan temas de derecho internacional, y de relevancia mundial, en compañía de expertos. El formato es conversacional, va dirigido a la audiencia hispanohablante, y el objetivo es que en cada episodio los oyentes puedan aprender, a través de la palabra de nuestros invitados, sobre el complejo mundo del derecho internacional.
- Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of all Forms of Racial Discrimination (Ukraine v. Russian Federation) (Preliminary Objections) (I.C.J.), with introductory note by Iryna Marchuk
- United Nations Security Council Resolution 2498, with introductory note by Milena Sterio
- Google LLC v. Commission Nationale de l'Informatique et des Libertés (CNIL) and Eva Glawischnig-Piesczek v. Facebook Ireland Ltd. (C.J.E.U.), with introductory note by Kenneth Propp
- Joined Cases A. K. v. Krajowa Rada Sądownictwa (C-585/18) and CP (C-624/18), DO (C-625/18) v. Sąd Najwyższy (C.J.E.U.), with introductory note by Joelle Grogan
- Resolution 2300 (Council of Eur. Parl. Assembly), with introductory note by David Lewis
- Ilias and Ahmed v. Hungary (Eur. Ct. H.R.), with introductory note by Vladislava Stoyanova
- Phillipa C. McCormack, Jan McDonald & Kerryn A. Brent, Governance of Land-based Negative-emission Technologies to Promote Biodiversity Conservation: Lessons from Australia
- Rolf H. Weber & Andreas Hösli, Climate Change Liability: Comparing Risks for Directors in Jurisdictions of the Common and Civil Law
- Alena V. Kodolova & Alexander M. Solntsev, Application of the Polluter-pays Principle in Russian Legislation on Climate Change: Problems and Prospects
- Morten Broberg, State of Climate Law: The Third Pillar of International Climate Change Law: Explaining ‘Loss and Damage’ after the Paris Agreement
Tuesday, June 30, 2020
The sociological objectivism school of thought situates itself within legal positivism but squarely rejects the key principles and assumptions of the voluntarist conceptualization of international law. Sociological objectivism denies state sovereignty and considers law as stemming, not from sovereign will, but from social necessity. For objectivists, positive law cannot produce normative effects unless it is aligned with an ideal, namely objective law. This raises questions regarding the interrelationship between objective law and natural law. Although the reality of contemporary international law disproves the extreme and ‘full-bodied’ version of sociological objectivism, certain precepts of this theory remain fairly germane. The chapter situates sociological objectivism within the broader design of legal positivism, discusses the key tenets of objectivism and explores how, outside of a ‘philosophy’ of international law, this theory can be translated into (a set of) method(s).
In Judges and the Making of International Criminal Law Joseph Powderly explores the role of judicial creativity in the progressive development of international criminal law. This wide-ranging work unpacks the nature and contours of the international criminal judicial function. Employing empirical, theoretical, and doctrinal methodologies, it interrogates the profile of the international criminal bench, judicial ethics, and the interpretative techniques that judges have utilized in their efforts to progressively develop international criminal law.
Drawing on the work of Hersch Lauterpacht, it proposes a conception of the international criminal judicial function that places judicial creativity at its very heart. In doing so it argues that international criminal judges have a central role to play in ensuring that modern international criminal law continues to adapt to a volatile global environment, where accountability for crimes that shock the conscience of humanity is as much needed as at any moment in recent history.
Monday, June 29, 2020
Natalie Davidson offers an alternative account of Alien Tort Statute litigation by revisiting the field's two seminal cases, Filártiga (filed 1979) and Marcos (filed 1986), lawsuits ostensibly concerned with torture in Paraguay and the Philippines, respectively. Combining legal analysis, archival research and ethnographic methods, this book reveals how these cases operated as transitional justice mechanisms, performing the transition of the United States and its allies out of the Cold War order. It shows that US courts produced a whitewashed history of US involvement in repression in the Western bloc, while in Paraguay and the Philippines the distance from US courts allowed for a more critical narration of the lawsuits and their underlying violence as symptomatic of structural injustice. By exposing the political meanings of these legal landmarks for three societies, Davidson sheds light on the blend of hegemonic and emancipatory implications of international human rights litigation in US courts.
- Michelle Limenta, Palm Oil for Fuels: WTO Rules and Environmental Protection
- Viktoriia Lapa, GATT Article XXI as a Way to Justify Food Prohibitions Adopted as a Response to COVID-19?
- Jayant Raghu Ram, From the Locker Room: Some Observations on Training Programmes in International Trade
- William A. Kerr & Crina Viju-Miljusevic, Why Has GATS Failed to Deliver Substantial Trade in Medical Services?
Gaffield: The Racialization of International Law after the Haitian Revolution: The Holy See and National Sovereignty
The Haitian state shaped international definitions of sovereignty and national legitimacy after the Declaration of Independence in 1804. Haiti’s nineteenth century was not a period of isolation and decline; its first six decades were globally connected because the country’s leaders challenged their postcolonial inequality with diplomacy and state formation. This strategy aimed to establish Haiti’s membership in the “family of nations,” a central metaphor in European and American diplomatic, legal, and religious decision-making. In doing so, the Haitian state forced the Atlantic powers to redefine the boundaries of international relations. Haiti’s decades-long negotiations with the Catholic Church were tied to the racialization of the global hierarchy. After its Declaration of Independence, the Haitian state began clearing a theoretical path toward recognized sovereignty based on the dominant narrative that a society must be considered “civilized” on the world stage. But, as it cultivated internal policies and practices that rejected the dominant racist assumptions, these discriminatory ideologies became increasingly more explicit in international law.
Sunday, June 28, 2020
What does it mean to cast border violence as a crime against migrants, specifically as an international crime? Some instances of border violence satisfy the legal definition of crimes against humanity. However, so far, almost no investigations or prosecutions have been brought forth to hold the perpetrators of such crimes accountable. The Chapter therefore elucidates the moral and political assumptions required for international criminal law to do just that. These are divided into three groups: (1) interpretations focused on the way that border policies employ violence against migrants to send a message to other would-be migrants; (2) interpretations revealing that prosecuting border crimes allows criminal law to address ‘structural violence’; (3) interpretations stressing the social desirability of porous borders and the harms of hermetic separations between national groups. The Chapter concludes by a call to make explicit the moral and political commitments undergirding advocacy through international criminal law.
For many observers, the European Union is mired in a deep crisis. Between sluggish growth; political turmoil following a decade of austerity politics; Brexit; and the rise of Asian influence, the EU is seen as a declining power on the world stage.
Columbia Law professor Anu Bradford argues the opposite in her important new book The Brussels Effect: the EU remains an influential superpower that shapes the world in its image. By promulgating regulations that shape the international business environment, elevating standards worldwide, and leading to a notable Europeanization of many important aspects of global commerce, the EU has managed to shape policy in areas such as data privacy, consumer health and safety, environmental protection, antitrust, and online hate speech. And in contrast to how superpowers wield their global influence, the Brussels Effect - a phrase first coined by Bradford in 2012- absolves the EU from playing a direct role in imposing standards, as market forces alone are often sufficient as multinational companies voluntarily extend the EU rule to govern their global operations.
The Brussels Effect shows how the EU has acquired such power, why multinational companies use EU standards as global standards, and why the EU's role as the world's regulator is likely to outlive its gradual economic decline, extending the EU's influence long into the future.
This article explores the gap between the definition of armed attack and the threshold for international armed conflict to identify possible consequences of the different definitions for the application of either or both bodies of law and to consider whether efforts to reconcile the different meanings are feasible and, more importantly, desirable or problematic. Although the dangers of conflating jus ad bellum and LOAC are well-known and thoroughly examined in jurisprudence and academic literature, the interplay between these two foundational concepts in the two bodies of law remains unexplored. These two definitions or concepts are the building blocks on which much of the international law authority regarding the use of force resides. Armed attack is the threshold for the use of force in self-defense and therefore forms an essential component of the jus ad bellum and, in effect, serves as a gatekeeper for the acceptable use of force. The existence of an international armed conflict triggers the application of LOAC, with all of its attendant authorities, obligations, rights and protections. Both terms are central to understanding the parameters for the use of force in various ways — and yet each has a different meaning, a different pedigree, and potentially consequential effects on the ability of the other term to serve its purpose. The interplay and different thresholds for armed attack and for international armed conflict raise challenging questions about the co-existence of the two bodies of law, namely the consequences of an international armed conflict triggered by acts or force that lie below the threshold for armed attack or other triggering of jus ad bellum. Can force be used and how should it be judged in such circumstances?
The first section briefly presents the definition of armed attack and the threshold for international armed conflict, with a focus on the purpose of the particular thresholds and definitions for the two terms in order to provide a foundation for the main comparisons and discussion in the rest of the article. Part II examines the gap between the respective meanings of the two concepts and the potential legal consequences. In particular, this section analyzes two primary, but opposing, interpretive effects of the gap between the meanings of armed attack and international armed conflict: first, the use of force in situations falling below the threshold of armed attack; and second, the possibility that an international armed conflict could exist without the states engaged in such conflict having the authority to use force against the adversary. Each of these possibilities raises a red flag within one body of law but at the same time hews closely to the basic concept or goals of the other, raising the question of whether this gap matters and, if so, whether some reconciliation is appropriate. The third section addresses this final question, that of reconciliation between the two definitions and examines what such reconciliation might look like. More important, attempts at reconciliation could cause a severely damaging blow to one or the other body of law, such that preserving the gap — that is, agreeing to disagree, in effect — is the better course of action.
The monograph “Sovereign Debt Restructuring: The Role and Limits of Public International Law” fills in a gap in recent literature focussing on the most important rules of public international law applicable to sovereign indebtedness. After providing a brief overview of the main debt restructuring vehicles that have been developed over time, the book traces a distinction between the rules of public international law that are relevant for debtor States (State succession in respect of debts, the odious debt doctrine, sovereign immunity and economic necessity) and creditor States (diplomatic protection and the conclusion of treaties specifically aimed at providing debt relief to a country). The book not only covers in detail the law and practice of the two international organisations that are mostly involved in sovereign debt issues (the IMF and the United Nations), but also examines the increasing role played by financial industry associations in the field (IIF, ICMA, ISDA).
In recent decades, the local, the municipal and the city have emerged as virtuous spaces where development and global integration can finally be achieved in the postcolony. In this chapter, we locate this emergence within a broader history of international attempts to organise and regularise urban life through multi-scalar governance structures. We identify these structures as having developed from a paradigm of direct imperial control over colonial cities, to a moment in which local life came to be organised through national logics, to the present resurgence of the local and municipal in more decentralised and indirect ordering processes. These transformations, which remind us that global governance has always been a hands-on project, have been fuelled by the intensification of the global economic order and the concomitant need to discipline lands, peoples and their fellow non-humans accordingly. The resurgence of the city as a locus of international discourse has created a dynamic interaction between international and local urban laws and development policies, which we identify in this chapter as ‘international urban law’. Our analysis points, however, not only to hegemonic forces in this interaction between the international and the local but also to the counter-hegemonic voices of resistance that have always punctuated debates about colonialism, decolonisation and cities in international law. As we demonstrate through a series of case studies, from Bogotá to Rio de Janeiro, and from Ulaanbaatar to Nairobi, today’s development programmes revive the colonial typology of cities as key nodes in global governance networks through euphemistically diverse yet still quite standardised patterns of disciplining. These case studies illuminate the socio-political (dis)arrangements underlying the present impetus towards making urban life legible and amenable to international prescriptions and the global economic order. Here we show how this reinvented brand of localised disciplining, and the resistance to it, are part and parcel of a post-colonial normative order that struggles to leave its imperial origins behind.
Children's rights law is a relatively young but rapidly developing discipline. The U.N. Convention on the Rights of the Child, the field's core legal instrument, is the most widely ratified human rights treaty in history. Yet, like children themselves, children's rights are often relegated to the margins in mainstream legal, political, and other discourses, despite their application to approximately one-third of the world's population and every human being's first stages of life. Now thirty years old, the Convention on the Rights of the Child (CRC) signalled a definitive shift in the way that children are viewed and understood—from passive objects subsumed within the family to full human beings with a distinct set of rights. Although the CRC and other children's rights law have spurred positive changes in law, policies, and attitudes toward children in numerous countries, implementation remains a work in progress. We have reached a state in the evolution of children's rights in which we need more critical evaluation and assessment of the CRC and the large body of children's rights law and policy that this treaty has inspired. We have moved from conceptualizing and adopting legislation to focusing on implementation and making the content of children's rights meaningful in the lives of all children. This book provides a critical evaluation and assessment of children's rights law, including the CRC. With contributions from leading scholars and practitioners from around the world, it aims to elucidate the content of children's rights law, explore the complexities of implementation, and identify critical challenges and opportunities for children's rights law.
In this essay, I argue that transnational law does indeed have formal legal character. To do so, I depart from the trend of socio-legal scholarship, instead applying a jurisprudential perspective. Specifically, I argue that public fiduciary theory is well-placed to explain both the nature of authority evoked by transnational legal orders, and the broader character of the law these orders purport to represent. This theory claims that the fiduciary character of an organization, namely its other-regarding purpose and adherence to certain procedural standards, is necessary for its claim to legitimate authority. By addressing these jurisprudential questions, public fiduciary theory enables the formulation of a persuasive rebuttal vis-à-vis scholars who deny transnational law its formal legal character. Ultimately, I argue that despite the private constitution of transnational law-making bodies, and their lack of express public authorization, by fulfilling a transnational fiduciary role they exercise authority which either is or closely resembles public authority. This, in turn, contributes to the legal character of the transnational norms these bodies generate. I use the International Organization for Standardization as an illustrative case study. The implications of this approach include acknowledging that law can exist beyond state regulation, either national or international, as well as denying coercion to be an essential element of law.
Perez-Leon-Acevedo & Nicholson: Defendants and Victims in International Criminal Justice: Ensuring and Balancing Their Rights
This volume considers a variety of key issues pertaining to the rights of defendants and victims at International Criminal Courts (ICTs) and explores how best to balance and enhance the rights of both in order to ensure the effectiveness and efficiency of international criminal proceedings.
The rights of victims are becoming an increasingly important issue at ICTs. Yet, at the same time, this has to be achieved without having a detrimental impact upon on the rights of the defence and the efficiency of the courts. This book provides analyses of issues on the rights of both the accused and the victims. By discussing matters concerning these two pivotal actors in international criminal justice within the same volume, the work highlights that there are intrinsic and intense conflicting and converging relationships between victims and the accused, particularly in terms of their rights. While most of the chapters focus mainly on either the accused or the victims, others discuss both at the same time. The work strikes a fine balance between, on the one hand, classic topics on the rights of the accused and the rights of the victims and, on the other, topics which have been largely unexplored and/or which require new angles or perspectives. Additionally, there are some chapters which approach both the rights of the accused and the rights of the victims in new contexts and/or under novel perspectives. The book as a whole provides a discussion of the two sides of this important coin of international criminal justice.
Kassoti: The Extraterritorial Applicability of the EU Charter of Fundamental Rights: Some Reflections in the Aftermath of the Front Polisario Saga
The Front Polisario cases before the Court of Justice of the European Union (CJEU) brought to the forefront the question of whether the EU is bound by the Charter of Fundamental Rights when it concludes trade agreements with third states that may affect the enjoyment of fundamentalrights abroad.This isclosely linked to the broader issue of the extraterritorial application of the Charter. In light of these developments, the article purports to revisit this question with a view to ascertaining the current state of the law. It examines and rejects the argument in favour of transposing the extraterritoriality standard developed by the European Court of Human Rights. Against this backdrop, the article continues by focusing on Article 51 of the Charter, which prescribes the Charter's field of application. The main argument advanced is that territorial considerations are immaterial in the context of determining the Charter's applicability; what seems to matter in this context is whether the situation in question is covered by an European Union (EU) competence.
Nous avons l'honneur et le plaisir de vous annoncer la mise en ligne du Blog – Droit International Pénal (BDIP), premier blog en langue française entièrement dédié à la justice pénale internationale.
L'objectif du blog est d’offrir aux professionnels du droit, enseignants, chercheurs, étudiants et experts francophones un forum d’information, d'échange et de discussion en droit international pénal.
Le blog vise également à contribuer à l’avancement du droit international pénal en offrant la possibilité aux experts intéressés de publier leur analyse de la justice pénale internationale.