- Bernhard Berger, Rights and Obligations of Arbitrators in the Deliberations
- Alexander J. Bělohlávek, Importance of the Seat of Arbitration in International Arbitration: Delocalization and Denationalization of Arbitration as an Outdated Myth
- Jacques Covo, FOSFA and GAFTA Standard Form Contracts and their Arbitration Systems
- Elisabeth Leimbacher, Efficiency under the New ICC Rules of Arbitration of 2012: first glimpse at the new practice
Saturday, June 29, 2013
- Interview with Peter Singer
- How are New Technologies Changing Modern Warfare?
- Alan Backstrom & Ian Henderson, New capabilities in warfare: an overview of contemporary technological developments and the associated legal and engineering issues in Article 36 weapons reviews
- Herbert Lin, Cyber conflict and international humanitarian law
- New Technologies and the Law
- Cordula Droege, Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians
- William Boothby, Some legal challenges posed by remote attack
- Stuart Casey-Maslen, Pandora's box? Drone strikes under jus ad bellum, jus in bello, and international human rights law
- Hin-Yan Liu, Categorization and legality of autonomous and remote weapons systems
- Hitoshi Nasu, Nanotechnology and challenges to international humanitarian law: a preliminary legal assessment
- Eve Massingham, Conflict without casualties … a note of caution: non-lethal weapons and international humanitarian law
- Ethics, Civil Society and New Technologies
- Peter Asaro, On banning autonomous weapon systems: human rights, automation, and the dehumanization of lethal decision-making
- Ben Clarke, Christian Rouffaer & François Sénéchaud Beyond the Call of Duty: why shouldn't video game players face the same dilemmas as real soldiers?
- Joshua Lyons Documenting violations of international humanitarian law from space: a critical review of geospatial analysis of satellite imagery during armed conflicts in Gaza (2009), Georgia (2008), and Sri Lanka (2009)
- Brian Rappert, Richard Moyes, Anna Crowe & Thomas Nash, The roles of civil society in the development of standards around new weapons and other technologies of warfare
- Comments and Opinions
- Noel E. Sharkey, The evitability of autonomous robot warfare
- Li Zhang, A Chinese perspective on cyber war
- Reports and Documents
- International Humanitarian Law and New Weapon Technologies 34th Round Table on current issues of international humanitarian law, San Remo, 8–10 September 2011 Keynote address by Dr Jakob Kellenberger, ICRC President, and Conclusions by Dr Philip Spoerri, Director for International Law and Cooperation
- Selected article on international humanitarian law
- Jason D. Wright, ‘Excessive’ ambiguity: analysing and reﬁning the proportionality standard
Friday, June 28, 2013
This draft paper currently under submission aims to explore the issue of the UN's responsibility for the cholera epidemic in Haiti with a view to examining some of the current limits of the accountability of peace operations. For the benefits of readers not reading French and given the topical nature of the debate, what follows is a fairly extensive abstract.
For the sake of argument, it presumes the facts to have been prima facie established, namely that a Nepalese contingent based in Haiti as part of MINUSTAH introduced a strain of cholera that provoked upwards of 7,000 deaths. The article takes as its starting point the claim presented by the Institute for Justice and Democracy in Haiti (IJDH) and the Bureau international des avocats to the MUNUSTAH local review board and UN Headquarters, as well as the terse negative response offered by the Secretary General on the basis that a consideration of that claim would involve “political and policy issues.”
The paper first examines the UN’s obligation to provide “appropriate remedies” as per the Convention on UN immunities as a quid pro quo for such immunities, one reinforced by the specific practice of peace operations. The UN Legal Affairs’ main argument seems to be that the dispute is not one of “private law,” the only kind for which the UN has committed to provide such remedies. The irony is that, largely as a result of the internal, confidential and unilateral character of the review boards’ procedure, the UN has never in its history provided an articulated conception of what constitutes a dispute of private law. Nonetheless, the paper suggests that this can be reconstructed thanks to a mix of SG reports on the third party claims procedure and a general theoretical and comparative understanding of the public/private distinction. The paper does caution that there is every reason to think that the distinction is itself problematic and can easily be reshuffled to make the point one wants to make. It finds that the UN’s own practice has been to acknowledge private law responsibility even when it is involved (contra some continental European law systems that make the state’s responsibility towards private third parties ipso facto a question of public law). Private law disputes are those over which local tribunals would have competence were it not for the operation of immunities. This clearly applies to the current case given that the harm occurred on Haitian territory and affected Haitian victims. Moreover, the SG has clarified that claims of a private nature primarily include “claims for compensation submitted by third parties for personal injury or death and/or property loss or damage incurred as a result of acts committed by members of a United Nations peace-keeping operation within the “mission area” concerned.” Although the decision not to screen Nepalese soldiers for cholera may have been taken outside Haiti, the paper finds that fact to be irrelevant given the fact that the harm predominantly occurred in Haiti itself. The other significant area of private liability of UN peace operations is the “non-consensual use and occupancy of premises.” It is striking that this issue raises many sensitive political and policy questions (for example, why is the host state not in a position to provide the premises which it is committed to provide), yet this has never been an obstacle to compensation. The idea that what is otherwise a private law dispute becomes a matter of public law merely because it raises political or policy issues is rejected as too broad and contradictory with UN practice (even car accidents involving peacekeepers, for which the UN clearly recognizes that compensation is due, involve some policy decisions up the road).
The paper points to the existence of disputes having a clearly identifiable public law to show a contrario how the Haitian claim is different. For example, any dispute involving public international law issues, such as one on the SOFA between Haiti and the UN, would be a matter of “public law.” Even if individuals in Haiti have an issue with the SOFA or the way it is being implemented, only Haiti is a party to that agreement and can invoke its benefit bilaterally with the UN. Some difficult issues do arise when the standard of care by which an international organization is held to be privately liable is based not on some general tortious obligation but closely indexed to the organization’s mandate. It is this sort of examination that the UN’s exclusion of responsibility in cases of “operational necessity” seeks to avoid. Yet the UN has not nor is likely to allege that not screening the Nepalese soldiers for cholera was an urgent matter leaving no alternative, the conditions that it has itself laid out for operational necessity.
The situation might be different if the core of MINUSTAH’s mission had been to fight cholera and the claim sought to impugn some of its sanitary decisions in discharging that mandate. There is evidence that “failures to discharge one’s mandate” are typically what the UN has considered to be matters of “public law”, as evidenced by its refusal to set up a permanent claims commission to examine the consequences of its failure to avert the genocide there as required by Rwanda. In the Haitian case, the failure to screen relates not to the goal of the mission or the core of its implementation but to matters several steps removed and incidental to it. It is worth noting that there are cases within the UN family of a possibility of “public law” review of certain acts (the World Bank Inspection panel, the Security Council ombudsperson, and various accountability mechanisms within international territorial administrations), that such mechanisms are clearly not what the Haiti-UN SOFA had in mind, but that nor is this sort of public accountability what the claimants in Haiti are seeking given the private nature of harm suffered.
The paper then examines the intriguing question of what the impact of the IJDH/BIA’s argument that the UN, in addition to committing a tort, violated the human rights of the claimants is for the characterization of the dispute. Assuming that idea to be plausible, there is at least an argument that it might be at counter-purpose with the claimants’ goal in that, in invoking human rights, it frames the case as a public law one. The responsibility to respect/protect human rights is clearly one of either public international law or, in domestic law, an administrative or constitutional matter. Yet there is also much in common between the two and the paper argues that invoking human rights does not defeat the IJDH/BIA case in terms of the “private law” receivability of the claim. US practice under ATCA, in particular, shows that it has long been possible to recharacterize human rights violations as private law violations; there is no reason to believe that the reverse cannot be done, without losing a private law violation that character. Interestingly, the practice of UNMIK’s Human Rights Advisory Board has been that claims formulated as human rights claims that could also be dealt with under the UN’s third party liability claims procedure (e.g.: because they involve death/injury or damage to property) should not be receivable before it, a practice that suggests that the UN itself is comfortable with the private/public translatability of such claims.
The paper then turns to an examination of the immunity issues that may be raised if the case is in the future brought before a domestic court, and which in any case impact our assessment of the significance of the duty to provide alternative remedies. The paper makes the argument that the normative basis for immunities of peace operations is probably not as strong as it once was. International organizations’ immunities have always served a less ontological role than states’. They are functional which means that they are conceded for the purposes of international organizations fulfilling their missions, even though in practice this means they have been considered close to absolute. Several factors in the present context should give pause for thought. First, IO immunities were primarily conceived to fend-off state interference, and one might therefore be inclined to think that it should make a difference if it is only individuals that are bringing claims, in a context where the state (here, Haiti) is conspicuously silent. Second, there is reason to believe that this silence of the state is not accidental but symptomatic of increasing UN intervention in situations where the state is weak or absent, and where the essence of what is going on is a direct face-to-face between the UN and local populations. Third, the idea that private parties’ invocation of their rights might negatively affect the UN’s functional capacity to discharge its mission merits close examination in a context where the UN is standing in for the state and/or helping reconstruct a system of governance based on accountability, the rule of law, and human rights. One might on the contrary think that it is failing to make itself accountable that might impede the organization’s ability to reach its goals.
Nonetheless, the paper finds that the weakening of the normative basis of immunities is not sufficient ground to consider that, in positive law, these immunities are no longer applicable. There is some confusion in the literature between the substantive argument for accountability, and the procedural and quite distinct issue of immunities. It bears mentioning that even if cases are brought by individuals in good faith, the exercise of jurisdiction by domestic courts still involves an exercise of sovereign imperium. The risk of undue interference by either individuals or the state is hard to exclude entirely, which plays into the ultimately prudential and pragmatic basis for immunities. In that respect the sometimes-heard argument that it is not in the UN’s “functions” to violate human rights and that it therefore cannot invoke its functional immunity when it comes to such cases is dismissed as based on a misplaced analogy with the functional immunities of former heads of state (see Pinochet). Human rights violations committed by the UN are certainly ultra vires, but they do not cease thereby to be official acts to which immunities apply, or one should be willing to entertain the frankly esoteric and counter-productive possibility that the UN violates human rights “in its spare time.” To claim otherwise would undo the international law of immunities as it applies to international organizations entirely. Rather than reducing the ratione materiae scope of immunities through an interpretation of what is “functional,” an alternative is to invoke the jus cogens character of human rights and to argue that this should trump immunities. Although this is an argument that has the favors of many among scholars of international law, it is also one that has spectacularly failed, even before international human rights courts, in relation to sovereign immunity, and there is no obvious reason to think that it would or even should fare differently in the case of international organizations.
There remains the possibility that immunities could be circumvented thanks to human rights but “through the back door” of the human right to an effective remedy. There is some case law on the idea that immunities can be bypassed when an international organization does not provide the alternative remedy that it is duty bound to provide, based on the idea that to do otherwise would violate the right of claimants to have their cause heard. The paper takes this possibility seriously, although it may ultimately help less in bypassing the UN’s immunity than in further reinforcing the case for providing an alternative remedy.
The paper concludes with a few thoughts on the way ahead and what might be an appropriate resolution to the conflict. The setting up of a standing claims commission, as anticipated by the SOFA, would at least be an improvement on a purely administrative and discretionary process. The idea of a “global settlement” as pioneered following the Congo operation in 1965 is an interesting precedent that seems suited to the mass character of the current Haitian claim and has in the past been endorsed by the Secretary General. Some sort of negotiation, conciliation, mediation or arbitration between Haiti and the UN might also be appropriate, although it would have to rely crucially on Haiti being willing to invoke its diplomatic protection, something that it has been urged to do domestically but has so far failed to show much interest in.
Beyond the particulars of the Haiti situation, one may wonder whether more original measures might not be warranted in the future, such as the creation of a systemic UN ombudsperson to deal with such difficult cases. What is needed, aside from the somewhat tiresome debate on what counts as a “private” or “public” law dispute, is a recognition by the UN that it should, at any rate, be accountable under public law for its acts, not only to other states and international organizations as currently discussed by the ILC, but to private “stakeholders” more generally. In a context where the UN’s responsibilities in post-conflict settings have been changing radically for at least a decade and where what it engages in is increasingly akin to forms of cosmopolitan governance, to systematically invoke the benefit of the “old rules” of immunity so characteristic of the 20th Century international legal order may betray a striking lack of candor.
- Bruno Zeller, Interpretation of Article 8: Is it Consistent with the Function of the Global Jurisconsultorium?
- Falk Lichtenstein, Neue Auslegungsbestimmungen zum chinesischen Kaufrecht
- Wolfram Buchwitz, Handelsklauseln und Erfüllungsort im materiellen Recht und IZVR
- Current Events
- F. Jessberger & J. Geneuss, Down the Drain or Down to Earth? International Criminal Justice under Pressure
- David Luban, After the Honeymoon: Reflections on the Current State of International Criminal Justice
- Diane Orentlicher, Owning Justice and Reckoning with its Complexity
- Payam Akhavan, The Rise, and Fall, and Rise, of International Criminal Justice
- Naomi Roht-Arriaza, Just a ‘Bubble’?: Perspectives on the Enforcement of International Criminal Law by National Courts
- William A. Schabas, The Banality of International Justice
- Mireille Delmas-Marty, Ambiguities and Lacunae: The International Criminal Court Ten Years on
- John Dugard, Palestine and the International Criminal Court: Institutional Failure or Bias?
- Frédéric Mégret & Marika Giles Samson, Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials
- Narrelle Morris, Unexpected Defeat: The Unsuccessful War Crimes Prosecution of Lt Gen Yamawaki Masataka and Others at Manus Island, 1950
- Cases before International Courts and Tribunals
- Mariya Nikolova & Manuel J. Ventura, The Special Tribunal for Lebanon Declines to Review UN Security Council Action: Retreating from Tadić’s Legacy in the Ayyash Jurisdiction and Legality Decisions
- National Prosecution of International Crimes: Legislation and Cases
- Robert Roth, Representational Capacity or Global Governance?: A Swiss Federal Court Addresses the Accusations against a Former Algerian General
- Gerhard Werle & Paul Christoph Bornkamm, Torture in Zimbabwe under Scrutiny in South Africa: The Judgment of the North Gauteng High Court in SALC v. National Director of Public Prosecutions
- Antonio Cassese Prize for International Criminal Law Studies
- Darryl Robinson, International Criminal Law as Justice
Although a State’s treatment of foreign investors has long been regulated by international law, it is only recently that international investment law has emerged as an independent discipline in its own right. In recent decades the practical success of investment arbitration has allowed international investment law to develop both its own cadre of academic and professional specialists and its own legal doctrines. This book analyses the structure of international investment law, as it has developed through the practice of investment arbitration in order to see how a variety of international investment law doctrines should be understood and applied. The book demonstrates how a structural analysis can shed light on several major controversies within investment law and also examines what an "investment" actually is. The book offers an original interpretative approach to the resolution of problems in international investment law, and so is one of the few books within the field to attempt to give investment law a solid theoretical basis. It also focuses on only a select number of problems, rather than attempting to deliver the universal coverage currently popular for investment law books. As a result, those issues that are addressed get a detailed discussion rarely available in competing texts.
A lawsuit between Esther Kiobel on behalf of Nigerian residents against Royal Dutch Petroleum and three of its affiliates incorporated in the Netherlands, the United Kingdom, and Nigeria, respectively, was brought in the US under the Alien Tort Statute (ATS), 28 U.S.C. §1350. The Statute, enacted in 1789, states: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” After more than ten years of dispute on procedural matters, in 2011 the US Supreme Court was asked to interpret the ATS, and certiorari was granted. Though originally the Supreme Court was only required to rule on the matter whether corporations can be held liable for international human rights violations under the ATS, it also answered the question whether and under what circumstances US courts may hear a case brought under the ATS, for violations of the law of nations occurring within the territory of a sovereign other than the United States. On a unanimous decision rendered last April the Supreme Court ruled that the ATS is not applicable to actions committed on foreign soil. This judgment seems to put an end to the extraterritorial jurisdiction of the United States for claims brought under the ATS for human rights violations committed by multinationals corporations on foreign territory, and that have no evident link to the United States. Voices of willing assent as well as waves of criticism have immediately risen all over the world. This seminar shall discuss the consequences of the judgment and the future prospects of human right litigation in civil courts.
International courts (ICs) are situated very differently, both in time and social and political space. While many ICs are relatively new, several have been operating for more than half a century and have changed significantly over time. The circumstances of their creation and evolution also vary significantly. This symposium invites a group of sociological, legal, and political science scholars, each with deep expertise on a specific international judicial system. By investigating how the external context is important for each participant’s institution of study, our goal is to collectively theorize about the importance of variations in legal, social and political factors that shape the operation of ICs.
The symposium will focus mostly on the external context in which each court operates rather than on context internal to the court itself, such as the interactions between judges, prosecutors, and registrars. External context is vitally important to how ICs function and evolve. All international judges must attentive to how their rulings will be received by governments, political leaders, interests groups, and potential litigants. The scholars in this symposium will explore how these and other external factors shape a court’s legal and political development.
- Elizabeth Blackburn & Rachel Toney, Delay and disruption claims in superyacht and other shipbuilding contracts
- Aleka Mandaraka Sheppard, Wrongful arrest of ships: a case for reform
- Avnita Lakhani, The strategic use of mediation for resolving maritime territorial disputes
In 2007, the ASEAN member states expressly undertook to establish the legal and institutional framework for the organization through the ASEAN Charter. To that end, the ASEAN Integration Through Law Project at the Centre for International Law (CIL) undertook to examine the role of law and the rule of law in Asian legal integration. Involving more than 80 scholars from Asia and around the world, this cornerstone project of CIL culminates in about 35 studies across the whole spectrum of ASEAN Legal Integration with a special focus on ASEAN Economic Community-building. These studies form the basis of a substantial body of scholarship on the rule of law, institutions, and international law in ASEAN economic integration and will be published by Cambridge University Press. An ASEAN Integration Through Law curriculum and pedagogy will also be produced.
One principal objective of the Project is to put in place the building blocks for an authentic body of ASEAN Legal Integration developed in and with sensitivity to the particularities and peculiarities of the Region. Thus, the Project, Papers produced and Plenaries do not advocate. They are designed, for the most part, to offer reflection, discuss the pros and cons, and in this way enrich public awareness, deepen understanding of different options and in that respect contribute indirectly to policy-making. Likewise, the Project is sensitive to ‘non Law’. It variously attempts to locate the appropriate province of the law in this experience. That is, not only the role of law but also the areas which are and should remain outside the reach of legal institutionalization with due sensitivity to ASEAN and Asian particularism and political and cultural identities.
CIL is now delighted to share the results of our Project with ASEAN experts and practitioners in the region. CIL would like to extend a warm invitation of participation to the four ASEAN Integration Through Law Plenaries.
The First Plenary on Thursday 4 July in Singapore launches the findings of the Project by giving an overview of the General Architecture of ASEAN, focusing on the political and economic aspirations of ASEAN and institutions (both regional and domestic) which play a part in ASEAN Community-building. The Second Plenary on Monday 29 July in Jakarta discusses the modalities of the governance and management of ASEAN, including the role ASEAN plays in External Relations. The Third Plenary on Monday 5 August in Hanoi focuses on the ASEAN Economic Community and ASEAN Environmental Law. Lastly, the Final Plenary on Monday 25 August in Singapore rounds up the previous Plenary discussions by examining the roles of the Rule of Law in ASEAN Integration.
Thursday, June 27, 2013
- Simon Gabriel, Investment Planning via Switzerland
- Simone Stebler, The Problem of Conflicting Arbitration and Forum Selection Clauses
- Nicholas Onuf, Recognition and the constitution of epochal change
- Nicholas Rengger, On theology and international relations: World politics beyond the empty sky
- Lee Jarvis & Michael Lister, Vernacular Securities and Their Study: A Qualitative Analysis and Research Agenda
- Eero Palmujoki, Fragmentation and diversification of climate change governance in international society
- Arash Heydarian Pashakhanlou, Back to the Drawing Board: A Critique of Offensive Realism
- Brian R. Urlacher, Negotiating with Insurgents: Changing Perceptions or Changing Politics?
- James P. Todhunter, The Domestic Fruits of Diplomacy: Mediation and Presidential Approval
- Peter Jones, Canada and International Conflict Mediation
- Thomas Kwasi Tieku, Perks Diplomacy: The Role of Perquisites in Mediation
- Diana Panke, Regional Power Revisited: How to Explain Differences in Coherency and Success of Regional Organizations in the United Nations General Assembly 1
- Mark Zeitoun, Michael Talhami, & Karim Eid-Sabbagh, The Influence of Narratives on Negotiations and Resolution of the Upper Jordan River Conflict
International arbitration has become the preferred dispute resolution mechanism in cross-border disputes. In the course of time, ad hoc arbitration, where the parties have to create their own rules and procedures, has increasingly been replaced by institutional arbitration where a specialised institution with a permanent organisation provides assistance and a set of practice-proven rules. The services and rules provided by the various institutions of arbitration differ. In order to inform the potential parties and their counsels about the differences and to make the choice between the different arbitration regimes easier, and to offer guidance through the various provisions, this book provides a comprehensive article-by-article commentary of rules of arbitration of 14 important arbitration institutions.
Ce livre vient combler une réelle lacune dans la présentation du droit international public en se consacrant intégralement au droit international social (dans ses aspects économiques, sociaux et culturels). À l’instar des autres branches du droit international, le droit international social actuel est le fruit d’une longue histoire ponctuée d’avancées considérables : la constitution de l’Organisation internationale du Travail, de l’UNESCO, de l’OMS, le Pacte international des droits économiques, sociaux et culturels… Droit programmatoire plus qu’obligatoire ? Le droit international social promeut de plus en plus de droits que les juridictions acceptent de plus en plus d’appliquer. Soft Law davantage que droit ? Sans doute une partie du droit international social présente-t-elle des allures de soft law, mais il n’en reste pas moins efficace. Le « droit dur » y est également très présent, notamment sous forme de droits fondamentaux. En présentant les spécificités du droit international social (son élaboration, ses mécanismes de mise en oeuvre et de contrôle et ses règles), le présent ouvrage est primordial pour comprendre la dimension sociale de la mondialisation.
- Yoshifumi Tanaka, Reflections on Time Elements in the International Law of the Environment
- Ingrid Leijten, Social Security as a Human Rights Issue in Europe – Ramaer and Van Willigen and the Development of Property Protection and Non-Discrimination under the ECHR
- Armin von Bogdandy & Stephan Hinghofer-Szalkay, Das etwas unheimliche Ius Publicum Europaeum. Begriffsgeschichtliche Analysen im Spannungsfeld von europäischem Rechtsraum, droit public de l’Europe und Carl Schmitt
- Iris Canor, Solange horizontal – Der Schutz der EU-Grundrechte zwischen Mitgliedstaaten
- Stellungnahmen und Berichte
- Diskurstheorie und Völkerrecht: Ein Interview mit Jürgen Habermas
Wednesday, June 26, 2013
- Giovanna De Minico, New Social Rights and Internet: Which Policies Combine Them?
- Ignacio de la Rasilla del Moral, Francisco de Vitoria’s Unexpected Transformations and Reinterpretations for International Law
- Caroline Joan S. Picart & Marlowe Fox, Beyond Unbridled Optimism and Fear: Indigenous Peoples, Intellectual Property, Human Rights and the Globalisation of Traditional Knowledge and Expressions of Folklore: Part I
- Norman A. Martínez Gutiérrez, New Global Limits of Liability for Maritime Claims
- Ida Lintel & Cedric Ryngaert, The Interface between Non-governmental Organisations and the Human Rights Committee
- Ekaterina Yahyaoui Krivenko, The “Reservations Dialogue” as a Constitution-Making Process
This essay, written for the Boston University International Law Journal's symposium on The Next Season: Realigning International Law and Western Policy After the Arab Spring, explores the responsibilities of Security Council members for abuses perpetrated in foreign humanitarian crises. As death tolls mount and massive violations of human rights continue in Syria, the Security Council plods along, doing little to respond to the escalating violence there. Some have portrayed the Council as a mere bystander, an onlooker with no connection to or responsibility for the atrocities undertaken by others. In another view, the Council is not merely standing by, but instead is complicit in the violence because it does nothing. Drawing on insights from the criminal law, this essay considers how we can better understand what it means to be a bystander in the context of humanitarian crises. Specifically, this essay examines two questions. First, it considers whether the resistance of Anglo-American criminal law to bystander liability should be replicated in the context of international affairs. Investigating the rationales for limited bystander liability in criminal law and the distinct rationales present in international law, this essay argues that even though the responsibility of the Security Council for international peace and security provides a strong reason for placing heightened expectations on the Council in the event of humanitarian crises, distinct concerns in international law caution against treating Council members as obligated to intervene in foreign states. Second, this essay draws on the criminal law distinction between acts and omissions to explore whether Security Council conduct in the context of humanitarian crises should properly be labeled participation or inaction. I contend that in light of the Security Council’s defined role under the U.N. Charter, a lack of involvement on the part of the Council should be understood as an affirmative choice, rather than as a failure to act. Exploring the broader moral intuitions of both criminal law and international law about the conduct of certain actors toward suffering caused by third parties, this essay seeks to illuminate some assumptions at work in our understanding of the Security Council’s role in humanitarian crises, thus furthering debates about the Council and humanitarian intervention, a crucial question in contemporary international law and politics.
Calamita: International Human Rights and the Interpretation of International Investment Treaties – Constitutional Considerations
The absence of articulations of public goods (beyond investment protection) in most international investment treaties has lead to calls for these treaties to be interpreted by reference to other areas of international law, such as international human rights law. Relying upon Article 31(3)(c) of the Vienna Convention on Law of Treaties, it has been suggested that taking into account the international human rights obligations of parties to international investment treaties will serve the purpose of providing greater balance to the interpretation of investment treaties, and even greater clarity. This paper looks at this claim. Part I expands upon the political-legal character of investment treaties, explaining how these agreements have largely adopted standards-type norms instead of rules-type norms in articulating the protections owed by host States to foreign investors. Part II looks at the difficult issues created by such imprecise treaty drafting in the interpretation and application of the protection against indirect expropriation found in investment treaties. Part III considers proposals to resolve this interpretive difficulty through the use of the principle of proportionality and reference to human rights instruments. Part IV concludes with the suggestion that rather than relying upon unpredictable applications of rules of treaty interpretation, States would be better advised to clarify their investment treaties and explicate the scope of the guarantees of protection provided there under – as a number of States have begun to do.
This is the first systematic analysis of multiple proceedings arising from investor-state disputes, including proceedings before multiple arbitral tribunals, the domestic courts of host states, and other forums such as the European Court of Human Rights. It seeks to identify clear, predictable, and sensible coordination mechanisms and to suggest an application of these mechanisms that reduces jurisdictional fragmentation, jurisdictional competition, and the potential for abuse of the complexities of the system of international investment protection.
The author explains how uncertainty in the area extends to several issues: there are doubts as to which forums have jurisdiction over a dispute and to what questions exactly this jurisdiction extends; there are doubts as to the mechanisms that should be applied to coordinate multiple proceedings (including consolidation, hierarchical coordination mechanisms, lis pendens and res judicata, and general principles of comity and prohibition of abuse of process) and how these mechanisms relate to each other; there are also doubts as to the law applicable to coordination mechanisms and the specifics of their application.
The book begins with an examination of the characteristics of the international investment framework that frequently lead to multiple proceedings. It then addresses the issue of determining jurisdiction, a prerequisite for the application of any mechanism for further coordination. The author goes on to examine the role of agreed coordination (such as the consolidation of proceedings) versus 'default' coordination mechanisms; the role of hierarchy of forums in coordination, which he argues is relevant when coordinating treaty proceedings on the one hand and non-treaty proceedings on the other; the principles of lis pendens and res judicata, which he argues apply only under limited circumstances; and concludes with the establishment of guidelines regarding the application of the principles of comity and the prohibition of abuse of process. This inherently practical subject is exclusively concerned with the existing law and seeks to provide serviceable solutions to the uncertainty facing practitioners and scholars in the current climate of investment law.
This Handbook provides state-of-the-art analysis by leading authors on the links between the international trade regime and health and environment concerns – concerns that make up an increasing proportion of WTO dispute settlement. Research Handbook on Environment, Health and the WTO surveys fields as diverse as climate change mitigation, non-communicable diseases, nanotechnology and public health care. The volume brings to the fore the debates and complexities surrounding these issues and their implications for the international trading system. The Handbook begins in Part I with a survey of general issues that sets a context for the more specific sectorial studies. Part II considers the most pressing issues within health regulation and trade law, whilst Part III is devoted to environmental regulation and its interface with trade law. Part IV looks specifically at aspects of the dispute settlement process and in particular standard of review, and the book concludes in Part V with a consideration of the impact of trade measures on the health and environment regimes of emerging economies.
Tout système juridique, pour être efficace, doit impérativement trouver un juste équilibre entre stabilité et mouvement. En droit international et, plus particulièrement, en droit des traités, le problème de l’adaptation de la règle de droit, à la réalité changeante, se pose avec plus d’acuité parce que les traités sont en principe appelés à durer, à arrêter le temps, en ce sens qu’ils traduisent un accord de volontés qui lie les parties. L’amendement formel constitue la principale méthode ordinaire d’adaptation des traités aux changements liés à l’écoulement du temps. À côté de celui-ci se sont développées, par la pratique, d’autres techniques, plus souples, qui relèvent essentiellement de l’interprétation et de l’application du traité et qui permettent aux parties d’apporter les adaptations nécessaires sans modifier formellement le traité. Cet ouvrage regroupe et fait l’analyse de toutes les techniques utilisées par les parties pour modifier un traité dans le but de tirer des conclusions concrètes susceptibles de servir de guide dans la négociation et l’application des traités.
Tuesday, June 25, 2013
- International Organizations and Climate Change Management
- Michael Mehling, Frameworks for International Climate Cooperation: Assessing the Alternatives
- Anesu Makina, Capacity of the Africa Group in International Climate Change Negotiations
- Orr Karassin, Multilateral Climate Change Funds and the Governance of Climate Risks
- Pamela Chasek, Follow the Money: Navigating the International Aid Maze for Dryland Development
- Nina Hall, Moving Beyond its Mandate? UNHCR and Climate Change Displacement
- Myra Leann Brown, EU Environmental Governance in Transition
- Insider's View
- Alisa Clarke, Organizational culture, system evolution and the United Nations of the 21st century
Wyler: Théorie et pratique de la reconnaissance d'État : Une approche épistémologique du droit international
À l’heure de la « globale gouvernance » et l’émergence de « nouveaux acteurs » dans les relations internationales et la production du droit international, il peut paraître surprenant de réexaminer le phénomène de la prise en compte de la naissance étatique par la reconnaissance. Pourtant, l’État n’est pas mort, faute probablement d’une alternative crédible, ainsi qu’en témoigne l’incessante quête de reconnaissance des entités étatiques en formation, illustrée par les mutations en ex-Yougoslavie, en ex-URSS ou, plus récemment, au Kosovo et au Soudan.
L’ouvrage propose une étude globale de la reconnaissance d’État, institution essentielle dans les relations internationales en raison de l’absence d’une juridiction obligatoire et centralisée appelée à trancher de cas en cas toute controverse juridique, notamment celle liée à la naissance d’un État au sens du droit international. Le point de vue adopté montre que la reconnaissance d’État n’est pas qu’une décision politique des gouvernements, mais a des effets juridiques dépassant la volonté de ses auteurs et déterminés par le droit international lui-même en fonction du contexte spécifique d’émergence d’une nouvelle entité et des interactions entre celle-ci, les organisations internationales et tous les États de la communauté internationale.
- Legal Equality and the International Rule of Law: Essays in honour of Pieter H. Kooymans
- Janne E. Nijman & Wouter G. Werner, Legal Equality and the International Rule of Law
- Brad R. Roth, Sovereign Equality and Non-Liberal Regimes
- Tony Carty & Xiaoshi Zhang, From Freedom and Equality to Domination and Subordination: Feminist and Anti-Colonialist Critiques of the Vattelian Heritage
- Gerry Simpson, Great Powers and Outlaw States Redux
- Jeffrey L. Dunoff, Is Sovereign Equality Obsolete? Understanding Twenty-First Century International Organizations
- Rosalyn Higgins, Equality of States and Immunity from Suit: A Complex Relationship
- Sarah M.H. Nouwen, Legal Equality on Trial: Sovereigns and Individuals Before the International Criminal Court
- Geoff Gordon, Legal Equality and Innate Cosmopolitanism in Contemporary Discourses of International Law
- Gregor Noll, Analogy at War: Proportionality, Equality and the Law of Targeting
The essential thesis of this article is that, as corporate and project finance trends continue in nuclear power plant financing, resulting in diversified and much broader and more complex structures of foreign investment, international investment law will become increasingly relevant to and influential upon these transactions. This in turn will spawn a new wave of disputes based in international investment law claims, before international arbitral tribunals including the ICSID. After discussing the 2011 Fukushima nuclear disaster, and the first international investment law case directly related to an investment in a nuclear power plant, the article begins in Part I by describing recent trends in the financing of nuclear power plants. These trends include a shift from almost exclusively sovereign-assumed financing cost and risk, to other financing models which increasingly access global capital markets, and spread risk among a larger and more diverse set of investors. It then proceeds in Part II to review and consider the international legal sources addressing nuclear energy development and related international trade and investment transactions, focusing on the sources of international investment law. It considers both the primary ways in which the current trends in nuclear power plant financing are making international investment law increasingly relevant to nuclear power plant related investments, as well as the secondary effect this increasing relevance will likely have upon future structuring of financing arrangements for new nuclear power plants. In Part III it provides detailed consideration of the application of international investment law to foreign investments in nuclear power plants, including areas in which host states of such investments are most likely to experience increased exposure to liability due to current financing trends. It concludes with a further consideration of the secondary effects caused by this increased host state exposure to liability, including effects on future structuring of financing arrangements for new nuclear power plants, and effects on (re)negotiations of international investment law instruments between actual or potential host states, and states that are actual or potential home states of nuclear vendors and investors.
- Issue Focus: Legal Issues of ASEAN Integration
- Joel Ng, Rule of Law as a Framework within the ASEAN Community
- Huan Qi, Investment Law in the China-ASEAN Free Trade Agreement
- Ida B. Wyasa, Harmonizing Ideological Tension in the Development of the ASEAN Law
- Saratoon Santivasa, The NGOs’ Participation in the Proceedings of the International Court of Justice
- Zhongfa Ma & Yan Zhang, TRIPs Agreement and Enforcement of the Intellectual Property Rights in China
- Notes & Comments
- Ahmed Buckley, Smiting Spell: The Legality of Targeted Killings in the War against Terrorism
- Regional Focus & Controversies: Fisheries Dispute in the Yellow Sea
- Korea: Suk Kyoon Kim
- China: Zewei Yang
Monday, June 24, 2013
- Aleksandar Jokic, Conventional Wisdom about Yugoslavia and Rwanda: Methodological Perils and Moral Implications
- Conrad Nyamutata, Self-Referrals Contra Objectives of International Criminal Justice
- Radhika Jagtap, International Legal Theory for International Terrorism: Formulation of a Universal Concept out of the Ideological Quagmires and Overlapping Approaches
- Chintan Chandrachud, Jus Cogens in the International Court of Justice: Lessons from the Basic Structure Doctrine in Indian Constitutional Law
- Slavka Antonova, Internet and the Emerging Global Community of Rights: The Human-Rights Debate at the Internet Governance Forum
- Rosanna Deplano, Questioning Unstated Assumptions of International Constitutionalism
- Rutsel Silvestre J. Martha, International Organizations as Sovereign Bondholders: An Unexplored Dimension of the Sovereign Debt Crisis
- Palollo Michael Lehloenya, Africa Must Walk Before She Runs: The Case for Agricultural Stability in Sub-Saharan Africa in Advance of a Global Trade
- Antoine P. Martin, Stability in Contemporary Investment Law: Reconsidering the Role and Shape of Contractual Commitments in Light of Recent Trends
- Alessandro Romano & Peachya Thammapitagkul, Antidumping: A Public Interest not So much in the Public Interest
- Trisha Rajput, The Management of Normative Conflict within the WTO: A Critical Analysis of the Implications of Other Regimes
- S. M. Hassan Razavi, Theory of Justice and Asymmetric Trade Liberalization: Limited Reciprocity as a Rule
- Won-Mog Choi, Korea’s Experience of Peaceful Settlement of WTO Disputes: Some Lessons for Asia
- Seokwoo Lee & Young Kil Park, The Legal Assessment of the Illegal Fishing Activities of Chinese Fishing Vessels: A Focus on Detention of Foreign Vessels
- Pae Keun Park, Korea and TWAIL: Does She Fit into the Picture?
- Iwao Fujisawa, Conference, Arbitration and the Triple Intervention of 1895: Relevance of the Western Ways of Dispute Settlement in East Asia
- Nanako Shimizu, Contemplating the Future of Collective Security in East Asia
- Walter Woon, Dispute Settlement in ASEAN
- Judy Hylton, Middle East Peacekeeping Operations after Peace Accords on the Syria and Lebanon Tracks
- Claus Kold, New Operations - New Attitudes? Are Soldiers’ Attitudes Influenced by the Objectives of Peace Operations?
- Garth den Heyer, Police as Nation Builders: Distinguishing between Countries that Contribute Police Officers to United Nations Peace Operations
- Bruce “Ossie” Oswald, The Copenhagen Principles, International Military Operations and Detentions
- Xenia Avezov, The New Geopolitics of Peace Operations: A Dialogue with Emerging Powers: South Asia Dialogue
- Xenia Avezov, The New Geopolitics of Peace Operations: A Dialogue with Emerging Powers: South America Regional Dialogue
NIJHOFF INTERNATIONAL INVESTMENT LAW SERIES
Dr. Eric De Brabandere, Leiden University
Dr. Tarcisio Gazzini, VU University Amsterdam
Dr. Stephan Schill, Max Planck Institute for International Law, Heidelberg
Professor Attila Tanzi, University of Bologna
The Nijhoff International Investment Law Series groups important, high-quality and original research in the field of international investment law. Although formally a part of international law generally, international investment law has become an independent field of research, crossing the boundaries between public international law, international commercial law, and domestic public law. The Series therefore covers international investment law in a relatively broad sense, including research on the substantive aspects of international investment law and the dispute settlement aspects, i.e., international investment arbitration.
The Series also covers research on interactions between international investment law and other areas of international law and domestic law, both private and public, including international economic and trade law, general public international law, international commercial law and arbitration, international environmental law, human rights, or domestic constitutional and administrative law. It is open to doctrinal analysis as well as theoretical, conceptual, and interdisciplinary approaches to international investment law, including law and economics analysis, empirical analysis, historical analysis, political science analysis, or normative analysis.
The Series will consider Works in, although not limited to, the following areas:
• Standards of treatment
• International investment arbitration
• Regionalism in international investment law
• Interaction between international investment law and domestic law
• Private law approaches to international investment law and arbitration
• Public law approaches to international investment law and arbitration
• Compensation and reparation in international investment law
• Responsibility and accountability of multinational corporations in international investment law
• International investment law and sustainable development
• Industry-specific or country-specific studies
• Doctrinal, conceptual, and interdisciplinary approaches
Proposals may be submitted to Senior Acquisitions Editor Marie Sheldon at Sheldon@brill.com.
Professor Andrea K. Bjorklund, UC Davis School of Law
Dr. Juan Pablo Bohoslavsky, UNCTAD and Universidad Nacional de Rio Negro (Argentina)
Dr. Chester Brown, University of Sydney
Professor David Caron, Dickson Poon School of Law, King’s College
Dr. Patrick Dumberry, University of Ottawa
Dr. Michael Ewing-Chow, National University of Singapore
Professor Susan D. Franck, Washington and Lee School of Law
Professor Ursula Kriebaum, University of Vienna
Professor Makane Mbengue, University of Geneva
Professor Catherine A. Rogers, Penn State Law
Professor Christian Tams, University of Glasgow
Professor Andreas Ziegler, University of Lausanne
- Itzchak E. Kornfeld, Comment on Ernst-Ulrich Petersmann’s ‘The Judicial Task of Administering Justice in Trade and Investment Law and Adjudication’
- Julio César Betancourt, Understanding the ‘Authority’ of International Tribunals: A Reply to Professor Jan Paulsson
- Alan Boyle & James Harrison, Judicial Settlement of International Environmental Disputes: Current Problems
- Themed Section: Procedural Aspects of Shared Responsibility in International Adjudication
- André Nollkaemper, Introduction: Procedural Aspects of Shared Responsibility in International Adjudication
- Martins Paparinskis, Procedural Aspects of Shared Responsibility in the International Court of Justice
- Freya Baetens, Procedural Issues Relating to Shared Responsibility in Arbitral Proceedings
- Lorand Bartels, Procedural Aspects of Shared Responsibility in the WTO Dispute Settlement System
- Maarten Den Heijer, Procedural Aspects of Shared Responsibility in the European Court of Human Rights
- Ilias Plakokefalos, Shared Responsibility Aspects of the Dispute Settlement Procedures in the Law of the Sea Convention
- Pierre Mayer, Conflicting Decisions in International Commercial Arbitration
Sunday, June 23, 2013
Chaumette & Thouvenin: La responsabilité de protéger, 10 ans après - The Responsability to Protect, ten years on
En 2001, la Commission internationale sur l'Intervention et la Souveraineté étatique (CIISE) proposait de repenser la souveraineté au prisme d'un nouveau concept : la "responsabilité de protéger". Dix ans après, son message a-t-il été entendu ? C'est en réponse à cette question que, au lendemain du printemps arabe, au terme d'une intervention controversée en Libye et face au drame syrien, le CEDIN a souhaité tirer un premier bilan, en organisant un Colloque international le 14 novembre 2011 à l'Académie diplomatique internationale (Paris), réunissant universitaires et praticiens autour du plus célèbre des concepteurs de la responsabilité de protéger, Gareth Evans. Ce livre en constitue les Actes.
In 2001, the International Commission on Intervention and State Sovereignty (ICISS) proposed to re-think the notion of State sovereignty in the light of a new concept, the responsibility to protect. Ten years on, has this message been heard ? To answer this question, in the aftermath of the Arab Spring, of the contested intervention in Libya, and facing the Syrian drama, the CEDIN organised an international colloquium on 14th of November 2011 at the Académie diplomatique internationale (Paris), with the participation of academics and practitioners, and of the most famous creator of the responsibility to protect, Gareth Evans. This book contains the written papers of the participants to the colloquium.