In this volume, renowned practitioners, scholars and jurists from the region and around the world explore the contribution of arbitration to the rule of law and economic development; the conformity of arbitration with international standards of due process and the rule of law; and the benefits and challenges of arbitration in Africa.
Monday, January 22, 2018
12 Investment disputes often concern society as a collective and direct stakeholder; especially in cases prompted by multinational companies conducting essential public services such as sanitation, energy production and distribution, or resource extraction. As disputes with far-reaching and direct implications on society have amassed, scholars have aimed at legitimizing the international settlement of investment disputes by, inter alia, shifting the ad hoc and arbitral focus of dispute settlement to a more permanent, institutionalized dispute settlement body.
Suggestions for the creation of permanent investment courts have been around for decades, but it is only recently that such suggestions may materialize into functioning investment courts. In particular, the European Commission has been pushing for a court-like mechanism to resolve investment disputes in several recent trade negotiations. Such a framework was included in the Free Trade Agreements (FTAs) that the European Union (EU) signed with Vietnam (EU – Vietnam FTA) and Canada (Comprehensive Economic and Trade Agreement (CETA)). While negotiations on the matter are currently at a political deadlock, the European Commission also formally proposed a court system during the negotiations for the Transatlantic Trade and Investment Partnership (TTIP) agreement with the United States. More recently, parties to the EU – Singapore FTA have decided to renegotiate the dispute settlement provisions to include a similar court-like mechanism. In addition, all agreements mentioned above also include provisions that support the establishment of a multilateral investment court.
Will these developments actually lead to the creation of permanent investment courts? How will such courts change the future of international investment law? Will they bring about a real institutional change of adjudicatory mechanisms? Will they introduce a ‘hybrid’ system, which borrows important characteristics from both arbitration and institutional methods of international adjudication? To address these questions, this conference will bring together leading scholars sharing a common interest in investment courts.
- Special Issue: Paving the BioLaw Path in International Criminal Law
- Anja Matwijkiw, Introduction: International Criminal BioLaw
- Ryan Long, Bioethics, Complementarity, and Corporate Criminal Liability
- Stefania Negri, Unethical Human Experimentation in Developing Countries and International Criminal Law: Old Wine in New Bottles?
- Xavier Aurey, The Nuremberg Doctors’ Trial: Looking Back 70 Years Later
- Bronik Matwijkiw & Anja Matwijkiw, Biolaw Stakes, Activist Jurisprudence, and (Presumed) Limits for Protected Interests
- Michael Davis, Marketing Body Parts: Morality, Law, and Public Opinion
- Articles and Commentaries
- Ozlem Ulgen, “World Community Interest” Approach to Interim Measures on “Robot Weapons”: Revisiting the Nuclear Test Cases
- Salar Abbasi, Democracy in International Law-making: An Unfilled Lacuna
- Naporn Popattanachai, Environmental Disputes from Regional Sea Programmes before itlos: Its Potential Role, Contribution, and the Challenges it Would Face in a Land-based Pollution Case
- Ana Lenard, The Nascent Law of Cyber Blockades and Zones
- Selma Kafedžić, Determining Modes of Liability in International Criminal Law: Why the Common Purpose Doctrine is the Strongest Legal Response to Mass Atrocity Crimes
- Sami Thamir Alrashidi, Challenging Cultural Backgrounds and Vernacularizing Human Rights
- The South Pacific
- Tony Angelo, The Pacific Islands Forum 2016
An innovative, interdisciplinary and far-reaching examination of the actual reality of international courts, International Court Authority (Oxford University Press, 2018) challenges fundamental preconceptions about when, why, and how international courts become important and authoritative actors in national, regional and international politics. Alter, Helfer and Madsen provide a novel framework for conceptualizing international court authority that focuses on the reactions and practices of these key audiences. Eighteen scholars from the disciplines of law, political science and sociology apply this framework to study thirteen international courts operating in Africa, Latin America and Europe, as well as on a global level. Together the contributors document and explore important and interesting variations in whether the audiences that interact with international courts around the world embrace or reject the rulings of these judicial institutions. This newly written book introduction situates our practice-based approach to studying international court authority, explaining how it differs compared to normative, sociological and compliance based studies of legal authority. We also preview the twenty-two chapters in the volume. The book expands by 40% the special issue we published in Law and Contemporary Problems, adding a new introduction and conclusion, three new empirical chapters, six commentaries and a conclusion that reconsiders how context influences the authority of international courts.
Sunday, January 21, 2018
Call for Papers: Responding to Legitimacy Challenges: Opportunities and Choices for the European Court of Human Rights
The application and interpretation of the four Geneva Conventions of 1949 have developed significantly in the sixty years since the International Committee of the Red Cross (ICRC) first published its Commentaries on these important humanitarian treaties. To promote a better understanding of, and respect for, this body of law, the ICRC commissioned a comprehensive update of its original Commentaries, of which this is the second volume. Its preparation was coordinated by Jean-Marie Henckaerts, ICRC legal adviser and head of the project to update the Commentaries. The Second Convention is a key text of international humanitarian law. It contains the essential rules on the protection of the wounded, sick and shipwrecked at sea, those assigned to their care, and the vessels used for their treatment and evacuation. This article-by-article Commentary takes into account developments in the law and practice to provide up-to-date interpretations of the Convention. The new Commentary has been reviewed by humanitarian-law practitioners and academics from around the world, including naval experts. It is an essential tool for anyone working or studying within this field.
Sobenes Obregon & Samson: Nicaragua Before the International Court of Justice: Impacts on International Law
- Mohammed Bedjaoui, Introduction from the Bench
- Alain Pellet, Introduction from the Podium
- Paul S. Reichler & Yuri B. Parkhomenko, Nicaragua v. United States and Matters of Evidence Before the International Court of Justice
- Fernando Lusa Bordin, The Nicaragua v. United States Case: An Overview of the Epochal Judgments
- Daniel Müller, The Saga of the 1858 Treaty of Limits: The Cases Against Costa Rica
- Lawrence H. Martin & Yuri B. Parkhomenko, The Territorial and Maritime Dispute (Nicaragua v. Colombia) and Its Implications for Future Maritime Delimitations in the Caribbean Sea and Elsewhere
- Antonio Remiro Brotóns, The Pact of Bogotá in the Jurisprudence of the International Court of Justice
- Brian McGarry, Nicaragua’s Impacts on Optional Clause Practice
- Antonios Tzanakopoulos & Anna Ventouratou, Nicaragua in the International Court of Justice and the Law of Treaties
- Malgosia Fitzmaurice, Customary Law, General Principles, Unilateral Acts
- Vaughan Lowe, Customary Principle of Sovereignty of States in the Nicaragua Case
- Benjamin Samson & Tessa Barsac, The Law of State Responsibility in the Nicaraguan Cases
- William Schabas, The Use of Force in the Nicaraguan Cases
- Donald R. Rothwell, International Law of the Sea and the Nicaraguan Cases
- Alina Miron, Intervention
- Hugh Thirlway, Provisional Measures
- Edgardo Sobenes Obregon, Joinder of Cases: Strengthening the Sound Administration of Justice and the Judicial Economy
- Pierre d’Argent, Conclusions
Saturday, January 20, 2018
Although migration is a transnational phenomenon involving a plurality of states, the state of departure is often unwilling/unable to offer protection. Receiving/transit states can refrain from engaging with the problem until migrants have already entered their territory. With high seas, this can result in the deaths of people taking the risk of travelling to a new place. The article argues that states have a duty to offer (some) protection even when migrants are not in their territory, based on human rights’ positive effect and the principle of due diligence. Because of the transnational nature of migration, all involved states have the responsibility to offer protection. This may lead to concurrent state liability for failure to protect. The duty to protect may extend to the high seas, even when the traditional links for the establishment of jurisdiction are absent. The duty is not unlimited, it needs to prevail over other considerations.
This chapter addresses a sampling of the myriad complex legal questions implicated by cyber operations conducted outside the context of armed hostilities. In such a rapidly evolving environment, the development of legal and policy parameters for governing state behavior in cyberspace—domestically and internationally—have failed to keep pace with the threat. Legal advisors charged with reviewing and advising on the legality of cyber operations are continuously called on to address difficult issues of first impression. This chapter identifies and considers some of the more challenging domestic and international legal issues raised by the conduct of cyber operations in the gray zone between peace and war. The chapter offers a brief description of the gray-zone concept, followed by a description of the cyberspace domain and the general nature of cyber operations before turning to a selective review of the domestic U.S. and international law challenges to conducting gray-zone cyber operations.
Jurisdictional rules, including immunity-based defenses to jurisdiction, allocate adjudicatory authority horizontally among sovereign states. In contrast to the more well-defined rules governing status-based immunities, this chapter focuses on conduct-based immunities from civil proceedings in light of the relative lack of consensus regarding their contours. First, it reviews some of the historical case law involving conduct-based immunity from civil proceedings in foreign courts, with a focus on U.S. cases. Second, it describes the approach taken more recently by several common-law courts. It concludes with observations on the evolving nature of law in this area.
Pitcher: Judicial Responses to Pre-Trial Procedural Violations in International Criminal Proceedings
This book provides an in-depth examination of the judicial response at the international criminal tribunals (ICTs) to the violation of procedural standards in the pre-trial phase of proceedings. It does so against the backdrop of the assumption that certain particularities of international criminal proceedings may warrant a different approach to the matter than at the national level. By reference to relevant human rights standards and to national criminal procedure,as well as to theoretical accounts of the judicial response to pre-trial procedural violations,this book assesses the ICTs’ law and practice in this regard, thereby identifying points of concern and making suggestions for improvement. In doing so, it considers the most suitable rationale for responding to procedural violations committed in the pre-trial phase of international criminal proceedings and the merits of judicial discretion in this context, as well as the impact of certain particularities of such proceedings on the determination of how to address procedural violations.
La Cour pénale internationale (CPI), avancée notable en ce XXIè siècle, apparaît sous les feux des projecteurs. Au-delà des critiques dont elle fait l'objet, se posent la question de la justice et de la paix, deux notions que la Cour doit s'efforcer de conjuguer. L'avènement de la CPI a suscité beaucoup d'espoirs, mais pour que celle-ci joue pleinement son rôle, elle doit effectuer sa mue et se débarrasser des limites tant textuelles qu'opérationnelles qui minent son action. Certes, imparfaite, la CPI n'en demeure pas moins à ce jour le modèle le plus achevé d'une juridiction internationale pénale.
- Andrew Byrnes & Gabrielle Simm, Introduction
- Andrew Byrnes & Gabrielle Simm, International peoples' tribunals: their nature, practice and significance
- Gianni Tognoni, The history of the permanent peoples' tribunal
- Gabrielle Simm, Peoples' tribunals, women's courts and international sexual violence crimes
- Tina Dolgopol, The Tokyo Women's Tribunal: transboundary activists and the use of law's power
- Saskia E. Wieringa, The International People's Tribunal on 1965 crimes against humanity in Indonesia: an anthropological perspective
- Simona Fraudatario & Gianni Tognoni, The participation of peoples in the development of international law: the laboratory of the Permanent Peoples' Tribunal
- Sara Dehm, Accusing 'Europe': articulations of migrant justice and a popular international law
- Rosalba Icaza Garza, The Permanent Peoples' Tribunal and indigenous peoples' struggle in Mexico: between coloniality and epistemic justice
- Nicola Edwards, Evaluating the Biak Massacre Citizens' Tribunal and the disputed Indonesian region of West Papua
- Belén Olmos Giupponi, Assessing the contribution of the Latin American Water Tribunal to transnational environmental law
- Andrew Byrnes & Gabrielle Simm, Reflections on the past and future of international peoples' tribunals
Grabel: When Things Don't Fall Apart: Global Financial Governance and Developmental Finance in an Age of Productive Incoherence
In When Things Don’t Fall Apart, Ilene Grabel challenges the dominant view that the global financial crisis had little effect on global financial governance and developmental finance. Most observers discount all but grand, systemic ruptures in institutions and policy. Grabel argues instead that the global crisis induced inconsistent and ad hoc discontinuities in global financial governance and developmental finance that are now having profound effects on emerging market and developing economies. Grabel’s chief normative claim is that the resulting incoherence in global financial governance is productive rather than debilitating. In the age of productive incoherence, a more complex, dense, fragmented, and pluripolar form of global financial governance is expanding possibilities for policy and institutional experimentation, policy space for economic and human development, financial stability and resilience, and financial inclusion. Grabel draws on key theoretical commitments of Albert Hirschman to cement the case for the productivity of incoherence. Inspired by Hirschman, Grabel demonstrates that meaningful change often emerges from disconnected, erratic, experimental, and inconsistent adjustments in institutions and policies as actors pragmatically manage in an evolving world.
Grabel substantiates her claims with empirically rich case studies that explore the effects of recent crises on networks of financial governance (such as the G-20); transformations within the IMF; institutional innovations in liquidity support and project finance from the national to the transregional levels; and the “rebranding” of capital controls. Grabel concludes with a careful examination of the opportunities and risks associated with the evolutionary transformations underway.
Friday, January 19, 2018
The classic starting point for identifying the sources of international law is Article 38 of the Statute of the International Court of Justice. Article 38 famously refers to three sources: treaties, customary international law, and general principles of law; as well as two subsidiary means for determining rules of law, namely judicial decisions and the teachings of publicists. However, Article 38 does not adequately reflect how the doctrine of sources operates in practice because it omits important sources of international law while misrepresenting the nature and weight of others. To appreciate how the doctrine of sources operates in practice, international lawyers need to understand how international law is created through a dialogue among states, state-empowered entities and non-state actors. States are important actors in this process, but they are not the only actors. It is only by understanding this process of dialogue that one can develop a full understanding of the theory – and reality – of the sources of international law.
- Panos Koutrakos, Judicial Review in the EU's Common Foreign and Security Policy
- Louise Merrett, The Future Enforcement of Asymmetric Jurisdiction Agreements
- Frans Viljoen, Understanding and Overcoming Challenges in Accessing the African Court on Human and Peoples’ Rights
- Giesela Rühl, Judicial Cooperation in Civil and Commercial Matters After Brexit: Which Way Forward?
- Gracia Marín Durán, Sheltering Government Support to ‘Green’ Electricity: The European Union and the World Trade Organization
- Catherine O'Rourke & Aisling Swaine, CEDAW and the Security Council: Enhancing Women's Rights in Conflict
- Machiko Kanetake, UN Human Rights Treaty Monitoring Bodies Before Domestic Courts
- Shorter Articles and Notes
- Billy Melo Araujo, Labour Provisions in EU and US Mega-Regional Trade Agreements: Rhetoric And Reality
- Giovanni Gruni, Towards a Sustainable World Trade Law? The Commercial Policy of the European Union After Opinion 2/15 CJEU
- Dylan Geraets, Changes in EU Trade Policy After Opinion 2/15
- Hannes Lenk, Prior Judicial Involvement in Investor-State Dispute Settlement: Lessons from the Court’s Rhetoric in Opinion 2/15
- Rob Howse, Unspoken Truths: The Hidden Logic of Decision 2/15
- Thomas Cantens, WCO Quarterly Column: Insecurity, Development, Trade and Taxation
- Henar Criado, Francisco Herreros, Luis Miller, & Paloma Ubeda, The Unintended Consequences of Political Mobilization on Trust: The Case of the Secessionist Process in Catalonia
- Elizabeth Nugent, Tarek Masoud, & Amaney A. Jamal, Arab Responses to Western Hegemony: Experimental Evidence from Egypt
- Nam Kyu Kim, Revolutionary Leaders and Mass Killing
- Todd S. Sechser, Reputations and Signaling in Coercive Bargaining
- Kristian Skrede Gleditsch, Simon Hug, Livia Isabella Schubiger, & Julian Wucherpfennig, International Conventions and Nonstate Actors: Selection, Signaling, and Reputation Effects
- Brian Blankenship, When Do States Take the Bait? State Capacity and the Provocation Logic of Terrorism
- Michael K. Miller, Michael Joseph, & Dorothy Ohl, Are Coups Really Contagious? An Extreme Bounds Analysis of Political Diffusion
- Cyanne E. Loyle & Helga Malmin Binningsbø, Justice during Armed Conflict: A New Dataset on Government and Rebel Strategies