Legal personality is generally understood as the capability to be - in traditional anthropomorphic terms - ‘the bearer of legal rights and obligations’. Legal personality is a structuring tool in legal systems, not least that of international law, as it indicates which actors or entities participate. This chapter considers international legal personality in its different roles. The concept works as an epistemic tool in theoretical reflections on the workings of international law, and it also serves as a doctrinal category within the system of international law. We take into account both roles, as well as the actual candidates for international legal personality which over time have emerged in different political contexts. As the conceptual linchpin between the social and the legal, personality is a central tool in claims of authority and autonomy among the participants in international life. It is key to a narrative of contestation, sometimes rebellion, in international law. The chapter is structured by a sequence of moments in the development of the form and use of the legal personality concept that we consider especially significant. These are: legal personality as a sign for legal existence (para 2); the structuring effect of the external aspect of legal personality (para 3); legal personality as the flipside of the reified state (para 4); contestation of the anthropomorphic conceptualization, and of the closed category of international legal persons (para 5); ‘legal personality’ changing from a constitutive to a declaratory statement (para 6); and the potential impact of post-subject and post-human lines of thought on the concept of legal personality (para 7).
Saturday, October 1, 2016
- The fight against terrorism, democracy and the power to revoke citizenship
- Introduced by Silvia Borelli and Maria Chiara Vitucci
- Flavia Zorzi Giustiniani, Deprivation of nationality: In defence of a principled approach
- Alison Harvey, Deprivation of nationality: Implications for the fight against statelessness
Friday, September 30, 2016
This short article considers the implications for public health of the award in the investment treaty dispute Philip Morris v Uruguay, challenging certain tobacco control measures of Uruguay including in relation to graphic health warnings. The article also takes account of the jurisdictional decision in that dispute and the decision in Philip Morris v Australia, challenging Australia's standardised tobacco packaging laws. Philip Morris lost both disputes.
The topic of civil liability in international arbitration, a controversial topic that has heretofore not been fully explored in the scholarship, is approached in an innovative fashion in this book. Recently, arbitral institutions have emerged as powerful actors with new functions in and outside arbitration processes and the author proposes to shift the debate on liability from arbitrators to the arbitral institutions. The book re-evaluates the orthodox understanding of the status, functions, and responsibility of arbitral institutions and is recommended for arbitration scholars, practitioners, and students. It is argued that the current regulations regarding liability are inadequate given both the contractual obligations and the emerging public function of arbitral institutions and that institutional arbitral liability is therefore necessary. The book also links the contemporary functions of arbitral institutions to recent debates regarding legitimacy challenges in international commercial arbitration. Responding to these challenges, a model of institutional contractual liability is proposed that invites arbitral institutions to proactively regulate the scope of their liability.
Cybersecurity now stands at the top of the U.S. security agenda. As sources of cyber insecurity have proliferated, States and other stakeholders have increasingly turned to norms as the regulatory tool of choice, hoping to shape the behavior of diverse actors in this space. Proponents of cybernorms have so far focused on what the new norms should say and on what behaviors they should require or prohibit. They have paid little attention to how new norms would actually work — how they could successfully be constructed and the processes by which they would create desired effects. In other words, they have paid a lot of attention to the “cyber” component of cybernorms but very little attention to the “norms” component and the issues of how normativity actually works in the world.
In this Article, we offer an inter-disciplinary analysis of the processes by which cybernorms might be constructed and some of the choices and trade-offs involved in doing so. We first situate the current discourse in the varying contexts surrounding cybersecurity. We define the norm concept and examine the diverse array of norms currently populating the landscape of cyberspace. We next draw on the rich body of work in social science about norm construction in other policy areas to understand how norms can be cultivated successfully and how they create effects, both intended and otherwise. Of course, if cyberspace is unique, lessons from other policy domains might not be applicable but we assess these arguments and find them unconvincing.
Our paper then unpacks some of the strategic choices facing norm promoters in their decisions on which norms are needed, who should conform to them, not to mention where and how they should do so. We do not prescribe a particular path for norm promoters, but rather emphasize the need to recognize and accommodate the consequences and trade-offs these choices involve. Our paper thus offers lessons for States, industry, civil society, and others interested in promoting norms in cyberspace. By situating our work in both international law and international relations, this paper also provides a case study of the strategic social construction of norms that offers both political scientists and international lawyers more information on how non-legal mechanisms could regulate global problems like cybersecurity.
- Cherise M. Valles, The TBT Agreement: Where Did It Come from and Where Is It Going?
- Maria Alcover & Ana María Garcés, The Interpretation of ‘Treatment No Less Favourable’ Under Article III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement: A Comparative Analysis
- Alejandro Sanchez & Karyn Sandra Aneno, Article 2.2 of the TBT Agreement: More Complicated than Necessary?
- Vitaliy Pogoretskyy & Tatiana Yanguas, From ‘Standard-Takers’ to ‘Standard-Makers’: Developing Countries and Least-Developed Countries’ Perspectives in the Harmonization of Technical Regulations Through International Standards
- Laichea Chea & Fernando Piérola, The Question of Private Standards in World Trade Organization Law
- Jan Bohanes, Kholofelo Kugler, & Maria Graciela Base, Sealing Off Asbestos: The Appellate Body’s Interpretation and Application of the ‘Product Characteristics’ Criterion Within the Definition of a ‘Technical Regulation’ in the TBT Agreement
- Erika de Wet, Holger Hestermeyer & Rüdiger Wolfrum, Introduction
- Rüdiger Wolfrum, Holger Hestermeyer & Silja Vöneky, The reception of international law in the German legal order: An introduction
- Erika de Wet, The reception of international law in the South African legal order: An introduction
- Mehrdad Payandeh, The United Nations Charter and the German legal order
- Dire Tladi, The United Nations Charter and the South African legal order
- Alexander Proelss, The international law of the sea in Germany
- Patrick Vrancken, The international law of the sea in South Africa
- Leonie Hensgen, International economic law in Germany
- Engela Schlemmer, International economic law in South Africa
- Wolfgang Durner, International environmental law in Germany
- Lisa Chamberlain & Tumai Murombo, International environmental law in South Africa
- Nicola Wenzel, International human rights law in Germany
- Lilian Chenwi, International human rights law in South Africa
- Kirsten Schmalenbach, International criminal law in Germany
- Christopher Gevers, International criminal law in South Africa
- Holger Hestermeyer, The implementation of European Union law in Germany
- Bonolo Dinokopila, The implementation of African Union law in South Africa
- Matthias Herdegen, The status and effect of international judicial decisions in the German legal order
- Erika de Wet, The status and effect of international judicial decisions in the South African legal order
- Rebecca Crootof, Change Without Consent: How Customary International Law Modifies Treaties
- Rebecca J. Hamilton, State-Enabled Crimes
- Taisu Zhang, Cultural Paradigms in Property Institutions
- José A. Cabranes, The Foreign Policy of Our Government's "Least Dangerous Branch"
Tzevelekos & Dzehtsiarou: International Custom Making and the ECtHR's European Consensus Method of Interpretation
European consensus (EuC) is a method of interpretation created by the European Court of Human Rights (ECtHR), which uses it to adjudicate cases involving morally/politically sensitive issues. The method consists of comparative analysis as a means for the identification of evolution in the practice of European states that reflects consensus about the emergence of human rights standards. If the Court finds consensus, it permits itself to establish pan-European standards that bind all states under its jurisdiction. The paper asks whether -- outside its actual function -- EuC may be employed to identify (regional) custom stemming from the practice of the European Convention of Human Rights signatories, that is, if EuC may be seen as a method for the identification of custom. To answer that question, the paper examines the function of EuC and compares it with custom. To escape the problem of the plurality of definitions of and perceptions about custom, the paper turns to the role of international judges and courts in the identification of custom, arguing that, although these do not make customary rules (i.e. judicial function is not constitutive of custom), they are in a position to drastically influence the definition of custom as a source of law. The conclusion reached is that, despite EuC’s sonorous similarities with custom, there are also significant differences between the two. EuC is not tantamount to custom. Yet, this could change if the ECtHR decided to define (regional) custom as coinciding with EuC. This is so because courts have the power and authority to shape the definition of custom.
Thursday, September 29, 2016
García-Salmones: Sources in the Anti-Formalist Tradition: A Prelude to Institutional Discourses in International Law
This chapter traces the legal and political principles of two important schools of the 20th century, the New Haven School and the School of Carl Schmitt and situates them in their geographical and historical contexts. It argues that both traditions were informed by a keen awareness of the earthquake caused in the international legal order by the collapse of the European empires after the 1930s. The contribution analyses commonalities, and specially differences in their political projects. It further argues that reaction against a naïve positivism reigning during the past century in international law essentially determined the development in both schools’ understanding of the concept of sources of law. Another important factor in that endeavor was the peculiar geo-political projects of each school. In the discussion of Schmitt the chapter focuses on sources of domestic law and seeks to understand the relationship between the sources of domestic and international law as Schmitt saw it through the notion of ‘concrete order thinking’. Finally the chapter also tackles on the common point of New Haven and Schmitt in connecting sources of law with politics, international organisations and institutions. The chapter concludes that both schools’ legal principles and theory of legal sources are worth analyzing today due to the intensification of an institutional discourse — envisaged by both schools — in international law and in the discussion of the sources of law.
This conference addresses ongoing issues of practical importance regarding the applicable standards of compensation and methods of quantum calculation in investor-state arbitration. Leading experts from the fields of law and economics will look at some of the most important issues raised in arbitration, including the determination of the appropriate approach to quantum and key issues concerning discounted cash flow analysis. In addition, experts will address ongoing developments in investment treaty practice with respect to changing state attitudes towards compensation in investor-state arbitration and novel approaches to compensation and other remedies by investor-state arbitral tribunals.
This book is a study of the future of international law as well as the future of the United Nations. It is the first study ever bringing together the laws, policies and practices of the UN for the protection of the earth, the oceans, outer space, human rights, victims of armed conflicts and of humanitarian emergencies, the poor, the vulnerable and the disadvantaged world-wide. It reviews unprecedented dangers and challenges facing humanity such as climate change and weapons of mass destruction, and argues that the international law of the future must become an international law of security and of protection. It submits that the concept of international security in the UN Charter can no longer be restricted to situations of armed conflict but must be given its natural meaning: whatever threatens the security of humanity. It calls for the Security Council to perform its role as the guardian of the security of humankind and sees a leadership role for the UN Secretary-General in analysing and presenting challenges of international security and protection to the Security Council for its attention.
Jus post bellum as a concept has gained significant attention in past decades. Scholars have identified certain normative principles underlying transitions from conflict to peace, such as retribution, reconciliation, restitution, reconstruction and proportionality. However, few attempts have been made to clarify how such principles relate to concrete dilemmas in transitions from conflict to peace, and what guidance the law provides. Traditionally, jus post bellum has been more concerned with the justice of war, rather than the justice of peace. It has been focused on states, rather than non-state actors. In our final conference on "Jus Post Bellum and the Justice of Peace", we will explore to what extent international law contains norms and principles of just and sustainable peace in general, and in specific areas.
The colloquium will bring together scholars working on the interaction within the human rights regime on the international, regional and domestic planes. What is of interest is the way that the two covenants have influenced each other in their legal development; and, significantly, the way that different human rights systems have influenced each other in the definition and implementation of these rights.
Particular attention will be given to the activities of the Human Rights Committee and the Committee on Economic Social and Cultural Rights, and their role in interpreting and driving implementation of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Wednesday, September 28, 2016
- Developing International Law at the Bar: A Growing Competition among International Courts and Tribunals
- Pierre Bodeau-Livinec & Chiara Giorgetti, Developing International Law at the Bar: A Growing Competition among International Courts and Tribunals
- Mathias Forteau, Regulating the Competition between International Courts and Tribunals: The Role of Ratione Materiae Jurisdiction under Part XV of UNCLOS
- Makane Moïse Mbengue, The Settlement of Trade Disputes: Is There a Monopoly for the WTO?
- Catherine Tinker, The Guarani Aquifer Accord: Cooperation in South America towards Prevention of Harm and Sustainable, Equitable Use of Underground Transboundary Water
- Jose Magnaye & August Reinisch, Revisiting Res Judicata and Lis Pendens in Investor-State Arbitration
- Chester Brown, Investment Treaty Tribunals and Human Rights Courts: Competitors or Collaborators?
- Research Articles
- Yoshifumi Tanaka, Reflections on the Philippines/China Arbitration: Award on Jurisdiction and Admissibility
- Hanna Kuczyńska, The Scope of Appeal on Complementarity Issues before the ICC: On the Example of the Appeal of Côte d’Ivoire against the Decision of Pre-Trial Chamber I in the Simone Gbagbo Case
- Steven William Kayuni, Quis Custodiet Ipsos Custodes (Who is Guarding the Guardians)? – Decision Processes in the ICC’s Offences Against the Administration of Justice
- Michael Gyan Nyarko & Henrietta Markfre Ekefre, Recent Advances in Children’s Rights in the African Human Rights System: A Review of the Decision of the African Committee of Experts on the Rights and Welfare of the Child in the Talibés Case
CALL FOR PAPERS
Netherlands Yearbook of International Law, vol 48 (2017)
Shifting Forms and Levels of Cooperation in International Economic Law: Structural Developments in Trade, Investment and Financial Regulation
The Netherlands Yearbook of International Law (NYIL) invites submissions for its volume 48 (2017) on the topic of Shifting Forms and Levels of Cooperation in International Economic Law: Structural Developments in Trade, Investment and Financial Regulation.
This volume aims to explore which emerging trends can be observed in selected fields of international economic law, with a focus on trade, investment and financial regulation. It will do so by looking both at a shift in the levels of cooperation (from global/multilateral to plurilateral, regional or bilateral – or vice versa), and at shifts in the forms of cooperation (examining changing actors and instruments for cooperation). It will examine these questions both from a conceptual and a practical perspective.
Conceptually, the volume aims to apply contributions on integration theories, such as neofunctionalism and new institutionalism, to explain the drivers for the trends observed in selected policy areas. Inter alia, the progression in the underpinnings for regionalism, and the role of policy makers and stakeholders as drivers of changes in the level of cooperation pursued by States may be addressed. Practically, this volume aims to assess the implications of the different levels and forms of cooperation observable in the chosen policy fields, and of shifts in both.
Possible topics include, but are not limited to:
- The changing function of international economic law
- The movement from multilateral to bilateral, regional or plurilateral trade agreements
- The role of emerging economies in the shift to regionalism
- The effect of regionalism on the WTO
- The role of business and market actors
- The importance of global value chains for drive towards mega-regional agreements
- The effect of new mega-regionals on developing countries
- The possibilities for a multilateral or plurilateral framework on investment
- Theoretical analyses of multilateralism and regionalism
The full description of the topic of the volume can be found here.
Abstracts of maximum 500 words should be submitted by 31 October 2016 to the Managing Editor, Dr Bérénice Boutin (email@example.com). Please also attach a one-page curriculum vitae, and include ‘NYIL 2017’ in the subject line.
Successful applicants will be notified by 30 November 2016. Complete drafts of papers (of maximum 12,000 words) must be submitted by 31 March 2017.
This chapter examines the compatibility of targeted sanctions – that is, sanctions directed against specific named persons – with the human rights of those who they target. It addresses both sanctions imposed by the United Nations Security Council and other international organisations, in particular the European Union, and individual States. And it does so by looking at the compatibility of such sanctions with procedural and substantive human rights.
- Patrick Low, Chiedu Osakwe & Maika Oshikawa, Introduction and overview
- Fatima Haram Acyl, African Union priorities in the WTO
- Okechukwu E. Enelamah, Economic diversification in Africa's number one economy
- Rob Davies, Trade, investment and development
- Joshua Setipa, Integration into regional and global value chains - how is it done?
- Moulay Hafid El Alamy, From Marrakesh to Nairobi: a force for the world trading system: from the past twenty years to the next twenty years
- Arancha González, Building capacity in Africa to facilitate integration into global value chains: contributions from the ITC
- Joakim Reiter, Investment and trade rules: increasing the stock of African foreign direct investment flows
- Anabel González, Deepening African integration: intra-African trade for development and poverty reduction
- Michael Finger, Rising Africa in world trade? A story of traditional commodities and new products
- Maika Oshikawa, Ukamaka Anaedu & Vicky Chemutai, Trade policy trends in Africa: empirical evidence from twenty years of WTO trade policy reviews
- Stephen Karingi, Ottavia Pesce & Simon Mevel, Preferential trade agreements in Africa: lessons from the tripartite free trade agreements and an African continent-wide FTA
- Bernard Hoekman, African trade integration and international production networks
- Marcus Bartley Johns, Christina Busch & Gerard McLinden, Implementing trade facilitation reform in Africa
- Chiedu Osakwe, Trade rules, industrial policy and competitiveness: implications for Africa's development
- Alexei P. Kireyev, WTO accessions, reforms and competitiveness: lessons for Africa
- Yuan Yuan, Driving economic growth through trade policy reforms and investment attraction in the open world economy: the experience of China
- Patrick Low, Chiedu Osakwe & Maika Oshikawa, Conclusions
- Jo-Ann Crawford, Market access provisions on trade in goods in regional trade agreements
- Maria Donner Abreu, Preferential rules of origin in regional trade agreements
- Nora Neufeld, Trade facilitation under the RTA umbrella: origins and evolution
- Jean-Daniel Rey, Do regional anti-dumping regimes make a difference?
- Jo-Ann Crawford, Jo McKeagg & Julia Tolstova, Mapping of safeguard provisions in regional trade agreements
- Lee Ann Jackson & Hanna Vitikala, Cross-cutting issues in regional trade agreements: sanitary and phytosanitary measures
- Ana Cristina Molina & Vira Khoroshavina, Technical barriers to trade provisions in regional trade agreements: to what extent do they go beyond the WTO TBT Agreement?
- Pierre Latrille, Services rules in regional trade agreements: how diverse and/or creative are they compared to the multilateral rules?
- Raymundo Valdés & Maegan McCann, Intellectual property provisions in regional trade agreements: revision and update
- Claude Chase, Alan Yanovich, Jo-Ann Crawford & Pamela Ugaz, Mapping of dispute settlement mechanisms in regional trade agreements – innovative or variations on a theme?
- Rohini Acharya, Some conclusions
Tuesday, September 27, 2016
- F. Philippe, L’arbitrage sportif, la lutte contre le dopage et le respect des droits fondamentaux des sportifs professionnels : une incertitude peu glorieuse
- F. Dubuissson, La Cour européenne des droits de l’homme et la surveillance de masse
- A. Di Marco, L’État face aux arrêts pilotes de la Cour européenne des droits de l’homme
- M. Hertig Randall & D. Hänni, La caméra cachée, entre journalisme d’investigation et voyeurisme
- É. Montero & Q. Van Enis, Les gestionnaires de forums et portails d’actualités cueillis à froid par la Cour de Strasbourg ?
- J. Ferrero, État des lieux de la justiciabilité des droits économiques, sociaux et culturels dans le système interaméricain
- M. Brillat, Ombre et lumière du Comité européen des droits sociaux
- G. Gonzalez, Quel génocide arménien?
- J-P- Marguénaud & J. Mouly, Big Boss is watching you – Alerte sur le contrôle des activités électroniques du salarié
- C. Pettiti, Hommage à Me Michel Puéchavy, un lanceur d’alertes humaniste
Public international law has embarked on a new chapter. Over the past century, the classical model of international law, which emphasized state autonomy and interstate relations, has gradually ceded ground to a new model. Under the new model, a state's sovereign authority arises from the state's responsibility to respect, protect, and fulfill human rights for its people. In Fiduciaries of Humanity: How International Law Constitutes Authority, Evan J. Criddle and Evan Fox-Decent argue that these developments mark a turning point in the international community's conception of public authority. Under international law today, states serve as fiduciaries of humanity, and their authority to govern and represent their people is dependent on their satisfaction of numerous duties, the most general of which is to establish a regime of secure and equal freedom on behalf of the people subject to their power. International institutions also serve as fiduciaries of humanity and are subject to similar fiduciary obligations. In contrast to the receding classical model of public international law, which assumes an abiding tension between a state's sovereignty and principles of state responsibility, the fiduciary theory reconciles state sovereignty and responsibility by explaining how a state's obligations to its people are constitutive of its legal authority under international law. The authors elaborate and defend the fiduciary model while exploring its application to a variety of current topics and controversies, including human rights, emergencies, the treatment of detainees in counterterrorism operations, humanitarian intervention, and the protection of refugees fleeing persecution.
This book provides a theoretical framework for explaining the choices made by international decision-makers in terms of what constitutes law. It comprehensively analyzes the practice of human rights courts in applying legal instruments outside their competence and proposes that this practice recognizes that different normative instruments coexist in an un-ordered space, and that meaning can be produced by the free interaction of those instruments around a problem. Based on this, the book advances its normative plurality hypothesis, which states that decision-makers must survey the acquis of international law in order to identify all the instruments containing relevant normative information for a particular situation. The set of rules of law applicable to the situation must then be complemented with other instruments containing specific normative information relevant to the situation, resulting in a complete system of norms advancing a common purpose.
- October 5, 2016: Ugo Panizza (Graduate Institute of International and Development Studies), The Law and Economics of Sovereign Debt and Default – Discussant: Pierre-Henri Conac (Univ. of Luxembourg)
- October 26, 2016: Robert Howse (New York Univ.), Sovereign Debt Restructuring and International Law – Discussant: Matthias Goldmann (Max Planck Institute for Comparative Public Law and International Law and Goethe Univ. Frankfurt)
- November 3, 2016: Mathias Audit (Univ. Paris I Panthéon-Sorbonne), Implications of Recent Sovereign Debt Litigation: Lessons from Argentina and Greece – Discussant: Regis Bismuth (Univ. of Poitiers)
- November 9, 2016: Michael Waibel (Cambridge Univ.), Investment Arbitration as a means of Resolving Sovereign Debt Dispute – Discussant: Rodrigo Olivares-Caminal (Queen Mary Univ. of London)
- November 30, 2016: Philip R. Wood (Allen & Overy), Proposals for Reform of Sovereign Debt Restructuring: The Contractual Approach – Discussant: Prof. Christoph G. Paulus (Humboldt Univ. of Berlin)
- December 14, 2016: Lee C. Buchheit (Cleary Gottlieb), Proposals for Reform of Sovereign Debt Restructuring: The Statutory Approach – Discussant: Luis M. Hinojosa-Martinez (Granada Univ.)