Substantive Protection under Investment Treaties provides the first systematic analysis of the consequences of the substantive protections that investment treaties provide to foreign investors. It proposes a new framework for identifying and evaluating the costs and benefits of differing levels of investment treaty protection, and uses this framework to evaluate the levels of protection for foreign investors implied by different interpretations of the fair and equitable treatment and indirect expropriation provisions of investment treaties. The author examines the arguments and assumptions of both supporters and critics of investment treaties, seeks to test whether they are coherent and borne out by evidence, and concludes that the 'economic' justifications for investment treaty protections are much weaker than is generally assumed. As such, the 'economic' objectives of investment treaties are not necessarily in tension with other 'non-economic' objectives. These findings have important implications for the drafting and interpretation of investment treaties.
Saturday, September 6, 2014
Friday, September 5, 2014
This book assesses whether a new category of actors-religious actors-has been constructed within international law. Religious actors, through their interpretations of the religion(s) they are associated with, uphold and promote, or indeed may transform, potentially oppressive structures or discriminatory patterns. This study moves beyond the concern that religious texts and practices may be incompatible with international law, to provide an innovative analysis of how religious actors themselves are accountable under international law for the interpretations they choose to put forward.
The book defines religious actors as comprising religious states, international organizations, and non-state entities that assume the role of interpreting religion and so claim a 'special' legitimacy anchored in tradition or charisma. Cutting across the state / non-state divide, this definition allows the full remit of religious bodies to be investigated. It analyses the crucial question of whether religious actors do in fact operate under different international legal norms to non-religious states, international organizations, or companies. To that end, the Holy See-Vatican, the Organization of Islamic Cooperation, and churches and religious organizations under the European Convention on Human Rights regime are examined in detail as case studies.
The study ultimately establishes that religious actors cannot be seen to form an autonomous legal category under international law: they do not enjoy special or exclusive rights, nor incur lesser obligations, when compared to their respective non-religious peers. Going forward, it concludes that a process of two-sided legitimation may be at stake: religious actors will need to provide evidence for the legality of their religious interpretations to strengthen their legitimacy, and international law itself may benefit from religious actors fostering its legitimacy in different cultural contexts.
Ruggie: Regulating Multinationals: The UN Guiding Principles, Civil Society, and International Legalization
Calls to regulate transnational corporations (TNCs) through a single overarching international treaty instrument go back to the 1970s. Over time, pressure for such a treaty has come most persistently from activists, and more intermittently from developing countries. A recent civil society assessment sums up the record to date: “All these efforts met with vigorous opposition from TNCs and their business associations, and they ultimately failed.” In contrast, in June 2011 the Human Rights Council unanimously endorsed the Guiding Principles on Business and Human Rights (GPs), which I developed over the course of a six year mandate as Special Representative of the UN Secretary-General for Business and Human Rights, through nearly fifty international consultations in all regions of the world. The GPs are the first authoritative guidance that the Council and its predecessor body, the Commission on Human Rights, have issued for states and business enterprises on their respective obligations in relation to business and human rights; and it marked the first time that either body “endorsed” a normative text on any subject that governments did not negotiate themselves. In comparison with normative and policy developments in other difficult domains, such as climate change, uptake of the GPs has been relatively swift and widespread. This paper addresses the logic behind the UN Guiding Principles, and what form of international legalization is best suited to build on them.
The ‘traditional values’ resolutions, passed by the UN Human Rights Council in 2009, 2011, and 2012, were the result of a highly controversial initiative spearheaded by Russia aiming to identify a set of traditional values that underpin international human rights law. This paper considers several critical questions that arise from these Resolutions. Do these ‘traditional values’ indeed underpin human rights? Why are traditional values valuable from the point of view of adherents to that tradition? Should the larger society take into account the fact that a practice is based on tradition in deciding whether or not to override it in the name of human rights? Put more technically, in what does the normativity of tradition lie, for adherents and non-adherents of that tradition? These are the questions that this essay explores, in the context of the recent debates over the scope and meaning of human rights stimulated by the Human Rights Council Resolutions. Much of the support for the Resolutions comes from what can broadly be called the global South. In several books, particularly "Human Rights, Southern Voices", and "General Jurisprudence: Understanding Law from a Global Perspective" William Twining has explored the question of how to reconcile human rights norms and belief systems embedded in the global South (including ‘traditional values’), and in doing so has drawn particular attention to intellectuals from that part of the world, in particular Francis Deng, Yash Ghai, Abdullahi An-Na’im, and Upendra Baxi. I suggest that those concerned to recognize the legitimate concerns that significant sections of the global South have about the human rights project, concerns reflected in the ‘traditional values’ Resolutions would do well to pay more attention to the ‘Southern voices’ on whom Twining rightly focuses attention.
Das „Recht nach dem Kriege“ behandelt das bislang völlig unbeachtet gebliebene Recht des Friedensvertrages. Im Ausgang der §§ 53 und 58 von Immanuel Kants Schrift „Metaphysische Anfangsgründe der Rechtslehre“ untersucht der Verfasser das „Recht nach dem Kriege“ im historischen, rechtsphilosophisch vergleichenden Blick, wobei einerseits die Entwicklung des Themas in Kants gesamten Werk nachgezeichnet als auch auf die derzeitige philosophische und völkerrechtliche Diskussion eingegangen wird. Die Arbeit unterteilt sich grob in zwei Abschnitte: In den Teilen 1 bis 8 wird Kants Konzept des „Rechts nach dem Kriege“ näher bestimmt, definiert, hergeleitet, abgegrenzt und sein Inhalt untersucht. Darauf aufbauend, wird in den Teilen 9 bis 12 u.a. Kants Vorstellung vom „Recht nach dem Kriege“ mit der von Brian Orend verglichen und schließlich ein „Muster-Friedensvertrag“ sowie ein „Muster-Übereinkommen des ‚Rechts nach dem Kriege‘“ entwickelt.
This is the first global history of the secret diplomatic and police campaign that was waged against anarchist terrorism from 1878 to the 1920s. Anarchist terrorism was at that time the dominant form of terrorism and for many continued to be synonymous with terrorism as late as the 1930s. Ranging from Europe and the Americas to the Middle East and Asia, Richard Bach Jensen explores how anarchist terrorism emerged as a global phenomenon during the first great era of economic and social globalization at the end of the nineteenth and beginning of the twentieth centuries and reveals why some nations were so much more successful in combating this new threat than others. He shows how the challenge of dealing with this new form of terrorism led to the fundamental modernization of policing in many countries and also discusses its impact on criminology and international law.
Thursday, September 4, 2014
The vast majority of all international judicial decisions have been issued since 1990. This increasing activity of international courts over the past two decades is one of the most significant developments within the international law. It has repercussions on all levels of governance and has challenged received understandings of the nature and legitimacy of international courts. It was previously held that international courts are simply instruments of dispute settlement, whose activities are justified by the consent of the states that created them, and in whose name they decide. However, this understanding ignores other important judicial functions, underrates problems of legitimacy, and prevents a full assessment of how international adjudication functions, and the impact that it has demonstrably had.
This book proposes a public law theory of international adjudication, which argues that international courts are multifunctional actors who exercise public authority and therefore require democratic legitimacy. It establishes this theory on the basis of three main building blocks: multifunctionality, the notion of an international public authority, and democracy. The book aims to answer the core question of the legitimacy of international adjudication: in whose name do international courts decide? It lays out the specific problem of the legitimacy of international adjudication, and reconstructs the common critiques of international courts. It develops a concept of democracy for international courts that makes it possible to constructively show how their legitimacy is derived. It argues that ultimately international courts make their decisions, even if they do not know it, in the name of the peoples and the citizens of the international community.
International courts and judicial bodies play a formative role in the development of international humanitarian law. Judges, Law and War examines how judicial bodies have influenced the substantive rules and principles of the law of armed conflict, and studies the creation, application and enforcement of this corpus of laws. Specifically, it considers how international courts have authoritatively addressed the meaning and scope of particular rules, the application of humanitarian law treaties and the customary status of specific norms. Key concepts include armed conflicts and protected persons, guiding principles, fundamental guarantees, means and methods of warfare, enforcement and war crimes. Consideration is also given to the contemporary place of judicial bodies in the international law-making process, the challenges presented by judicial creativity and the role of customary international law in the development of humanitarian law.
Call for Papers: Legalities and Legacies: The Past, Present, and Future of the Palestine Mandate in International Law
Call for Papers
Legalities and Legacies:
The Past, Present, and Future of the Palestine Mandate in International Law
Jerusalem, 21-22 June 2015
The Faculty of Law of the Hebrew University of Jerusalem and the Columbia Law School invite the submission of written proposals for an international conference on the international law legacies of the Palestine mandate, to be held in Jerusalem on 21-22 June 2015, and for a subsequent publication.
Recipients of this call for papers are invited to submit proposals to present a paper at the conference. Some authors of proposals selected for the conference will be offered partial or full coverage of flight and accommodation expenses.
Deadline for Submitting 1-2 Page Proposal: 30 September 2014
Deadline for Submitting the Article (Selected Proposals): 15 April 2015
On 24 July 1922, the Council of the League of Nations confirmed the mandate for Palestine. On midnight, 14 May 1948, the mandate came to an end. Much that happened before, during and beyond these dates remain contested – and much remain uncharted.
This is particularly patent when it comes to the international legal aspects of the Palestine mandate. Conflict historians have long been captivated by that period; historians of Israeli law have focused on the law of mandatory Palestine for some time now. Yet, since the 1940s, little to none of that attention has been turned to the role international law has played in the Palestine mandate, or the role of the Palestine mandate in affecting the course of international law. International law practitioners, scholars, and historians, it seems, are occasionally willing to reengage with some of the old debates surrounding the Palestine mandate (such as the locus of sovereignty in mandate territories), as has the International Court of Justice in the Wall Advisory Opinion. Seldom do they engage in a broader reflection on the legal import of the Palestine mandate or on its legacies.
The conference seeks to ponder on and rectify this glaring gap. By focusing on legalities and legacies of the Palestine mandate in international law, we intend to explore whether, today, there is more to the Palestine mandate than a crucial or futile contestation – legal or political?1 – over historic rights, entitlements, and narratives. A convenient point of departure may be the League of Nations mandate system. Here, renewed interest by international legal and diplomatic historians could furnish fresh perspectives on how the mandate system, and the Palestine mandate, were conceived, enacted, theorized, practiced, and terminated. Equally, the Palestine and other mandates can provide new vantage points from which to gauge contemporary international law debates (e.g. the termination of belligerent occupation by fiat of an international organization resolution, or the legal frameworks(s) governing post-conflict governance and territorial administration.
Next, then, are questions about the specificities of the Palestine mandate: against what broader contexts can we understand the classification of the Palestine mandate as an ‘A-type’ mandate under Article 22 of the Covenant? Is the critical discourse of mandates as international, institutional extensions of colonialism and empire analytically conducive, or has that discourse now become no more than a vehicle of anachronistic denunciation? What do comparisons of present-day and past understandings of mandates as instruments of ‘a sacred trust of civilization’, dedicated to the ‘well-being and development’ of a people not-(yet?)-inhabiting its territory, tell us about the force of the Palestine mandate, the uses of the mandate system, or about the road since traversed by international law itself? Can we adduce or find coherence with general principles when we consider e.g. the Palestine mandate’s Transjordan provisions? Can these provisions and subsequent arrangements be understood outside the British Imperial context? Can we evaluate the clause preserving ‘civil and religious rights of existing non-Jewish communities in Palestine’ without historicizing the international law – on minority protection, self-determination, subjecthood and recognition – that may have informed its formulation? How were all these specificities theorized, defended, or contested then and since? How are they today?
The practice of the Palestine mandate gives rise to additional sets of questions. In this respect, it may be asked whether it is at all possible, rather than remain prisoners of dichotomous patterns of behavior setting apart ‘the Jews’ and ‘the Arabs’, to conduct a more nuanced inquiry, one that obeys doctrinal understandings of validity, of different actors within and without mandatory Palestine – were they bearers of international rights and obligations under international law? – and how they conducted themselves, legally-speaking? What role did notions of consent, acquiescence, prescription, estoppel, protest and effectiveness play in the legal unfolding of the mandate? And what imprints have such practices left on the unfolding of the mandate, on its future interpretation, on international law doctrine – or on the theory of international legal personality? What impact have such notions had on the assertion and evaluation of rights and obligations emanating from the Palestine mandate? And what of the mandatory itself? What have been, or ought to have been, the legal consequences of how it adhered to or departed from its obligations?
Another set of questions, seldom asked any more, pertains to the impact of the Palestine mandate on the international legal status of Jewish individuals and communities elsewhere. How did the clause preserving the ‘the rights and political status enjoyed by Jews in any other country’ come into being, and how was it conceived, interpreted, and practiced by the Yishuv, the mandatory, the League of Nations institutions (e.g. the Minorities Section of the Secretariat), third-party governments, and Jewish Diaspora? What impact did it have on the international law status and recognition of Jewish collectivity, Jewish rights, or Jewish obligations? What were the ideological, doctrinal, and bureaucratic affinities (or tensions) between the League’s supervision of the governance of the ‘Jewish National Home’ and its oversight, through the Secretariat’s Minorities Section, over the situation of Jews in Central Eastern Europe?
Many of these queries converge unto a discussion of the enduring effects and legacies of the Palestine mandate. How did it affect what would transpire later, and what was the impact of subsequent developments – the Partition Resolution, successive wars, agreements and discords – on the legal understanding of the Palestine mandate? Was it committed to the dustbin of international law’s (and the conflict’s) history, to be redeemed unilaterally upon ephemeral convenience? Or does it continue to provide relevant data for analyzing individual and collective rights, self-determination, sovereign entitlements, territorial boundaries, and licit and permissible use of force and land?
1 In 1925, the Supreme Court of Palestine, sitting as a High Court of Justice, entertained the view that the mandate was ‘a political and not a legal document … likely to contain expressions of good intention which are more easy to write than to read’.
Applicants are invited to propose papers discussing these or similar questions falling broadly within the following and other pertinent themes:
1. The Mandate System: Historical and Legal Perspectives
2. The Legal and Historical Specificities of the Palestine Mandate
3. The Legal Significance of Practice Developed under the Palestine Mandate
4. Beyond Palestine: The Mandate and the International Legal Status of the Jewish People
5. The Palestine Mandate: The Impact of/on Subsequent Legal Developments
6. The Palestine Mandate: An Enduring Legal Significance for the World Community and International Law?
Researchers interested in addressing these and related questions are invited to respond to this call for papers with a 1-2 page proposal for an article and presentation, along with a brief CV, including a list of publications. Proposals should be submitted by email to Dr. Rotem Giladi of the Hebrew University of Jerusalem (email@example.com) no later than 30 September 2014.
Applicants should expect notification of the Conference Academic Committee’s decision by early November 2014. Written contributions (of 10,000-12,000 words), based on the selected proposals, will be expected no later than 15 April 2015.
Professor Tomer Broude, Vice-Dean, Hebrew University Faculty of Law
Dr. Hillel Cohen, School of History, Hebrew University
Ady Schonmann-Bethlehem, Visiting Professor, Columbia Law School
Professor Yuval Shany, Dean, Hebrew University Faculty of Law
Professor Matthew C. Waxman, Columbia Law School
Dr. Rotem Giladi, Hebrew University Faculty of Law – conference coordinator
- Special Issue: The State of Climate Law
- David Freestone & Alexander Zahar, Introduction to the Special Issue
- Michael Bothe, Doha and Warsaw
- Steinar Andresen, The Climate Regime: A Few Achievements, but Many Challenges
- Sebastian Oberthür, Options for a Compliance Mechanism in a 2015 Climate Agreement
- Christina Voigt, Equity in the 2015 Climate Agreement
- Davor Vidas, Sea-Level Rise and International Law
- Robin Kundis Craig, Climate Change, Oceans, Public Health, and the Law
- Benjamin J. Richardson, The Evolving Marketscape of Climate Finance
- David M. Driesen, The Limits of Pricing Carbon
- Maxine Burkett, Loss and Damage
- Marjan Peeters & Thomas Schomerus, Modifying Our Society With Law
- Jolene Lin, Litigating Climate Change in Asia
- Jan McDonald, A Short History of Climate Adaptation Law in Australia
Wednesday, September 3, 2014
Why do some issues and threats—diseases, weapons, human rights abuses, vulnerable populations—get more global policy attention than others? How do global activist networks decide the particular causes for which they advocate among the many problems in need of solutions? According to Charli Carpenter, the answer lies in the politics of global issue networks themselves. Building on surveys, focus groups, and analyses of issue network websites, Carpenter concludes that network access has a direct relation to influence over how issues are ranked. Advocacy elites in nongovernmental and transnational organizations judge candidate issues not just on their merit but on how the issues connect to specific organizations, individuals, and even other issues.
In “Lost” Causes, Carpenter uses three case studies of emerging campaigns to show these dynamics at work: banning infant male circumcision; compensating the wartime killing and maiming of civilians; and prohibiting the deployment of fully autonomous weapons (so-called killer robots). The fate of each of these campaigns was determined not just by the persistence and hard work of entrepreneurs but by advocacy elites’ perception of the issues’ network ties. Combining sweeping analytical argument with compelling narrative, Carpenter reveals how the global human security agenda is determined.
The conference offers a forum to discuss the content and structure of the preferential trade agreements currently under negotiation between some of the world’s major trading partners. The main focus is on the Canada-EU Comprehensive Economic and Trade Agreement (CETA), the Transatlantic Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TPP).
CETA, TTIP and TPP reflect a novel approach to global trade relations by virtue of their economic impact, broad sectoral coverage and provisions on investor-state dispute settlement. International scholars and practitioners will discuss these developments and their policy-implications from both an international trade and investment law perspective. Issues addressed by the panels include:
- Structural implications for the international economic order
- Democratic legitimacy
- Investment protection
- Energy governance and the Green Economy
- Innovation and IP protection
- Novel regulatory areas
Conference: 10th Anniversary Conference of the European Society of International Law (and Related Events)
Today, September 3, the Society's interest groups will be hosting workshops and meetings. These include:
- Interest Group on International Legal Theory: Extra-Legal Dynamics of International Legal Theory
- Interest Group on Peace and Security: The Changing Nature of Peacekeeping: Challenges for Jus ad Bellum, Jus in Bello and Human Rights
- Interest Group on International Economic Law: Workshop
- Interest Group on Feminism and International Law: Representations of Women in International Law
- Interest Group on Business and Human Rights: Business and Human Rights: International law and ...
- Interest Group on Bio Law: International Law and . . . Bio Law – From Theory to Practice
- Interest Group on International Courts and Tribunals: Inaugural Meeting
- Interest Group on International Human Rights Law: Meeting
- Interest Group on the Law of the Sea: International Law and . . . the Sea
Finally, on September 8, the third ASIL-ESIL-MPIL Workshop on International Legal Theory will take place in Vienna. The topic is "Authority in International Law: New and Traditional Forms and Approaches."
Under what conditions does a post-conflict government have authority? What challenges to its legitimacy does it face? To what standards can it be held accountable? Via case studies of Sierra Leone and Afghanistan and detailed accounts of extant international law, Matthew Saul explores the international legal framework which regulates popular governance of post-conflict reconstruction.
Tuesday, September 2, 2014
This paper first traces the evolving legal status of developing countries in the multilateral trading system in the post-war years, beginning with the emergence of Special and Differential Treatment on the import side (protection of infant industries) in the 1950’s, then on the export side in the 1960’s (non-reciprocal preferences granted by developed countries on developing country exports); then the adoption of the Single Undertaking during the Uruguay Round in the 1980’s and early 1990’s; then the major fault lines that have emerged between developed and many developing countries that have largely paralyzed the current Doha Round. The paper then traces a parallel evolution in thinking in development economics in the post-war period, beginning with big push, state-led, import substitution policies in the first three post-war decades; then, in the face of disappointing results, largely superceded by the sharply opposing policy prescriptions of the Washington Consensus, with its commitment to the ubiquitous virtues of markets in the 1980’s and 1990’s; then in turn, in the light of disappointing results, largely superceded by the so-called New Development Economics which rejects universal or broadly generalizable theories of economic development and accepts that appropriate policies prescriptions will be highly country – specific, recognizing the particularities of each country’s endowments, political structure, culture and history. These shifts in thinking map closely onto the evolving role of developing countries in the multilateral trading system. The paper goes on to propose the abandonment of the single undertaking, “one size fits all approach” adopted in the Uruguay Round, and argues for a larger role for plurilateral agreements within the multilateral systems (‘coalitions of the willing’), in part as a counterweight to the dramatic recent proliferation of Preferential Trading Agreements.
- Dan Kuwali, ‘Humanitarian Rights’: Bridging the Doctrinal Gap between the Protection of Civilians and the Responsibility to Protect
- Siobhán Wills, Continuing Impunity of Peacekeepers: The Need For a Convention,
- Ezequiel Heffes, The Responsibility of armed opposition groups for Violations of International Humanitarian Law: Challenging the State-Centric System of International Law
- Miriam Bradley, International humanitarian law, non-state armed groups and the International Committee of the Red Cross in Colombia
- Silvia Scarpa, Guaranteeing the Broadest Protection to Minors in the Aftermath of Disasters: Re-Framing the International Discussion in Terms of Child Abduction, Sale, and Trafficking
- C. Nyamutata, Engaging or Shaming? An Analysis of UN’s Naming and Shaming of Child Abusers in Armed Conflict
- Federica Cristani, Challenge and Disqualification of Arbitrators in International Investment Arbitration: An Overview
- Inna Uchkunova, The Minotaur’s Labyrinth: Third State Intervention before the International Court of Justice
- Sondra Faccio, The Application of the Principle of Proportionality to Assess Compensation: Some Reflections Arising from the Case of Joseph Charles Lemire v. Ukraine
- Fernando Lusa Bordin, Procedural Developments at the International Court of Justice
- Amedeo Arena, The Relationship Between Antitrust and Regulation in the US and the EU: Can Legal Tradition Account for the Differences?
- Marco Benatar, International Law, Domestic Lenses
- John Jupp, Legal Transplants as Tools for Post-Conflict Criminal Law Reform: Justification and Evaluation
- Vladislava Stoyanova, Article 4 of the ECHR and the Obligation of Criminalising Slavery, Servitude, Forced Labour and Human Trafficking
- Interpretation in International Law Symposium
- Daniel Peat & Matthew Windsor, An Interpretive Turn to Practice?
- David Baragwanath, The Interpretative Challenges of International Adjudication Across the Common Law/Civil Law Divide
- Andreas Sennekamp & Isabelle Van Damme, A Practical Perspective on Treaty Interpretation: the Court of Justice of the European Union and the WTO Dispute Settlement System
- Shai Dothan, In Defence of Expansive Interpretation in the European Court of Human Rights
- Jure Vidmar, Judicial Interpretations of Democracy in Human Rights Treaties
- Diane Desierto & Colin Gillespie, A Modern Integrated Paradigm for International Responsibility Arising from Violations of Economic, Social, and Cultural Rights
This chapter explores the dynamic interactions between domestic social norms and international law over trade dispute resolution. Using empirical case studies involving China, EU, US, Korea and Japan, the paper investigates how the dyadic configuration of social norms regarding preferred dispute resolution method impacts the resolution of trade disputes. It creates a new theoretical approach to understand the interfaces between domestic norms and international legal order. The theory predicts a complex development in the acceptance of non-litigious states of the current international legal order for dispute resolution.
- Stephan W. Schill, Editorial: Five Times Transparency in International Investment Law
- Special Issue: The Anatomy of the (Invisible) EU Model BIT
- Marc Bungenberg & August Reinisch, Special Issue: The Anatomy of the (Invisible) EU Model BIT
- Frank Hoffmeister & Gabriela Alexandru, A First Glimpse of Light on the Emerging Invisible EU Model BIT
- Marc Bungenberg, The Scope of Application of EU (Model) Investment Agreements
- Wenhua Shan & Sheng Zhang, Market Access Provisions in the Potential EU Model BIT: Towards a “Global BIT 2.0”?
- Ursula Kriebaum, FET and Expropriation in the (Invisible) EU Model BIT
- Antonios Tzanakopoulos, National Treatment and MFN in the (Invisible) EU Model BIT
- Anna De Luca, Umbrella Clauses and Transfer Provisions in the (Invisible) EU Model BIT
- Catharine Titi, Full Protection and Security, Arbitrary or Discriminatory Treatment and the Invisible EU Model BIT
- Markus Burgstaller, Dispute Settlement in EU International Investment Agreements with Third States: Three Salient Problems
- Christoph Herrmann, The Role of the Court of Justice of the European Union in the Emerging EU Investment Policy
- Christian J. Tams, Procedural Aspects of Investor-State Dispute Settlement: The Emergence of a European Approach?
- Karsten Nowrot, How to Include Environmental Protection, Human Rights and Sustainability in International Investment Law?
- N. Jansen Calamita, Dispute Settlement Transparency in Europe’s Evolving Investment Treaty Policy
- August Reinisch, “Putting the Pieces Together … an EU Model BIT?”
- Jarrod Hepburn, Comparative Public Law at the Dawn of Investment Treaty Arbitration: Saar Papier Vertriebs GmbH v. Republic of Poland
- Catherine A. Rogers & Alexander Wiker, Fraport v. Philippines, ICSID, and Counsel Disqualification: The Power and the Praxis
- Crina Baltag, “Denial of Benefits” Clause in Pac Rim v. El Salvador and Liman v. Kazakhstan
- Santiago Montt & Carlos Portales, Telefonica v. United Mexican States
- Cecily Rose, Circumstantial Evidence, Adverse Influences, and Findings of Corruption: Metal-Tech Ltd. v. The Republic of Uzbekistan
- Jean Ho, Unraveling the Lex Causae in Investment Claims
Monday, September 1, 2014
- Theresa Reinold, The ‘Responsibility Not to Veto’, Secondary Rules, and the Rule of Law
- Vassilis Pergantis, Strange Bedfellows
- Tim Dunne & Katharine Gelber, Arguing Matters
- Deon Geldenhuys, The African Union, Responsible Sovereignty and Contested States
- Maksymilian Del Mar, Legality as Relative Institutionalisation: MacCormick's Diffusionism and Transnational Legal Theory
- Anthony Robert Sangiuliano, Towards a Natural Law Foundationalist Theory of Universal Human Rights
- Christine Bell, What We Talk About When We Talk About International Constitutional Law
- Bosko Tripkovic, Judicial Comparativism and Legal Positivism
- Dezso Farkas, Re-Evaluating Shareholder Primacy in the Post-Crisis Context: A View from Comparative Political Economy
- Anthony Carty & Zhang Xiaoshi, Unequal to Equal Treaty: From the Anglo-Irish Treaty 1921 to the Belfast Agreement (Good Friday Agreement) 1998 - a Chinese Perspective
- Joshua Curtis, The ‘Economics of Necessity’, Human Rights and Ireland’s Natural Resources
- Amanda Kramer & Rachel Killean, Security Council Referrals to the ICC: A Politicised System
Conference: Tratados internacionales, Jurisprudencia y Doctrina. Análisis práctico desde el Derecho Internacional en Latinoamérica
- Jennifer Hasselgård-Rowe & Emmanuel Kabengele Mpinga, Justiciability of the Right to Health in South Africa and Switzerland through the Lens of its Normative Components
- Mohamed Elewa Badar, ElSayed M.A. Amin, & Noelle Higgins, The International Criminal Court and the Nigerian Crisis
- Ronagh JA McQuigg The European Convention on Human Rights Act 2003 – Ten Years On
- J. Ife Ogbonna, Protecting Human Rights as Public Morals under the General Agreement on Tariffs and Trade (gatt) 1994
- Triestino Mariniello, International Criminal Court: Selected Developments in 2013
- Saidat Nakitto, South Africa’s Exercise of Universal Jurisdiction
- Ilias Bantekas, The Emergence of an International Law of Sovereign Debt and Insolvency
This Chapter argues that the increasing threat and deployment of cyber-weapons will force (or should force) the law of war to develop a sophisticated and nuanced account of causation. Part I will explain in greater detail why causation is largely irrelevant (or at the very least uncontroversial) to the basic structure of traditional International Humanitarian Law (IHL). Part II will then introduce various cyber-attack scenarios that will trigger immense pressure on IHL to develop an account of causation that is consistent with the unique ways that IHL is adjudicated. I will place less emphasis on which account of causation is abstractly correct and will instead support the more modest claim that cyber-attacks implicate the concept of causation in previously unseen ways. The result is the emergence of a primary research agenda for IHL at both levels: theory (scholarship) and codification (via state practice and potential treaty provisions). Finally, Part III will explain why some traditional theories of causation cannot be reflexively and uncritically grafted into IHL. Simply put, IHL demands a level of publicity and transparency that generates a significant asymmetry as compared to other fields of domestic law, where the fact-finding machinery of domestic courts is more suited to parsing complex causal phenomena. By deploying George Fletcher’s famous distinction between the pattern of subjective criminality and the pattern of manifest criminality, I will show that the former is appropriate for the criminal law’s extensive fact-finding system, but IHL, burdened by the lack of fact-finding resources, must rely on the pattern of manifest criminality. Cyberwar presents an especially acute case of this general phenomenon within IHL; the causal processes of a cyber-attack and its downstream consequences are difficult to chart, thus suggesting that the law governing cyberwar should place a premium on transparent rules that, like the pattern of manifest criminality, can be applied by a reasonable third-party observer.
Sunday, August 31, 2014
Giladi: A ‘Historical Commitment’? Identity and Ideology in Israel's Attitude to the Refugee Convention 1951–4
The paper examines and debunks the conventional wisdom that Israeli foreign policy incorporates a ‘historical commitment’ to the 1951 UN Refugee Convention. Particular Jewish interests and universal values, it is argued, led the newfound Jewish state to initiate the Convention, participate in its formulation, and promote its acceptance; Israel was, additionally, among the first states to sign and ratify the Convention. Against the backdrop of present-day discourse and competing perspectives on the Jewish motif in Israel's foreign policy, the paper traces the process of Israel's ratification of the Refugee Convention. Israel's attitude to the Convention, it finds, was characterised by delay, disinterest, indifference, even hostility. Moreover, neither particular interests nor universal values satisfactorily explain Israel's attitude. Rather, this attitude was the outcome of competing visions of Israel's identity and ideological interpretations of Jewish nationalism. Ideologically, the Convention validated yet at the same time also undermined Israel's particular identity as the state of refuge of the Jewish people and its ideological raison d’être in the world system. This ambivalence allowed Israeli diplomats to construct a logic of exemption under which the particularity of Israel's very existence as the state of refuge of the Jewish people represented complete performance of its universal obligations under the Convention.
Le mécanisme de règlement des différends de l’O.M.C. se distingue des autres juridictions internationales en ce qu’il comporte un ensemble sophistiqué de procédures spécifiquement et exclusivement destinées à traiter les désaccords pouvant surgir au cours de l’exécution de l’obligation qui résulte pour un Membre de la décision juridictionnelle qui déclare sa responsabilité. Leur existence même et la façon dont les organes de jugement s’acquittent de leur mission témoignent de ce que l’exécution des obligations résultant des actes juridictionnels dans l’ordre international n’échappe pas fatalement au droit. Ainsi, le système de l’O.M.C. exprime mais aussi réalise une ambition singulière en droit international : renforcer la garantie de la légalité en habilitant la juridiction à encadrer, contrôler, et, en définitive, participer à assurer l’exécution de ses propres décisions.