Showing papers in "International and Comparative Law Quarterly in 2015"

Global experimentalist governance, international law and climate change technologies

Abstract: Global experimentalist governance has emerged within and across a number of international regulatory regimes, but its potential contribution to the global governance of climate change remains largely unexplored. This article investigates the opportunities and barriers to developing global experimentalist governance approaches in the international regulation of climate change technologies, focusing on the recent framework for marine geoengineering under the London Dumping Protocol. It argues that, in the face of the limits of international law in dealing with uncertainty, multilevel distribution of power and regulatory disconnection, global experimentalist governance is attractive to catalyse adaptability, iterative learning, participation and cooperation. Such approach can help rethink the way international law deals with technological development, by emphasizing its problem-solving function.

The best interests of the child principle as an independent source of international protection

Abstract: The Convention on the Rights of the Child, and the best interests principle codified in Article 3 in particular, is playing an increasingly significant role in decisions involving the admission or removal of a child from a host State. This article examines the extent to which the best interest principle may provide an independent source of international protection. That protection may, for instance, proscribe the removal of a child from a host State notwithstanding that the child is ineligible for protection as a refugee or protection under the more traditional non-refoulement obligations in international human rights law.

Humanitarian law, human rights law and the bifurcation of armed conflict

Abstract: This article offers a fresh examination of the distinction drawn in international humanitarian law (IHL) between international and non-international armed conflicts. In particular, it considers this issue from the under-explored perspective of the influence of international human rights law (IHRL). It is demonstrated how, over time, the effect of IHRL on this distinction in IHL has changed dramatically. Whereas traditionally IHRL encouraged the partial elimination of the distinction between types of armed conflict, more recently it has been invoked in debates in a manner that would preserve what remains of the distinction. By exploring this important issue, it is hoped that the present article will contribute to the ongoing debates regarding the future development of the law of non-international armed conflict.

The arms trade treaty: achievements, failings, future

Abstract: This article looks at the origins, purposes and conflicts of national interests and policies that were the primary influences in shaping the substance of the Arms Trade Treaty, which came into force at the end of 2014. It then proceeds to a more legally focussed analysis and, having identified several important issues which have had to remain undiscussed, concentrates on detailed examination and evaluation of the most important provisions of substance. These are firstly the scope of the Treaty—defining the equipment or materiel covered (Article 2). There follows analysis of the provisions which contain the obligations on exporting States, ranging from absolute prohibitions (Article 6) to ‘export assessments’ (Article 7), which in practice will be the most frequently applicable. The paper concludes by identifying several valuable provisions in the Treaty whilst also highlighting several significant weaknesses and omissions. It contends that evaluation of the Treaty's likely contribution to controlling the recognized evils of the arms trade is premature at this stage and, further, that efforts towards that end must focus on the practice and law of domestic administrative implementation, rather than international law.

Child abduction : recent jurisprudence of the European Court of Human Rights

Abstract: This article examines how the European Court of Human Rights has clarified its jurisprudence on how the 1980 Hague Child Abduction Convention Article 13 exceptions are to be applied in a manner that is consistent with Article 8 of the European Convention on Human Rights. It also analyses recent case law of the European Court of Human Rights on how the courts in the EU are to handle child abduction cases where the courts of the habitual residence have made use of their power under Article 11 of Brussels IIa.

Eunavfor operation atalanta off somalia: the eu in unchartered legal waters?

Abstract: EUNAVFOR Operation Atalanta has been the first maritime operation of the European Union and it has certainly been successful given the significant decrease of pirate attacks off the Somali coast. However, various issues have been raised concerning its legal basis under international law and its legal framework, including questions of responsibility. These issues are particularly interesting since the EU has a more integrated legal order than other organizations involved in such operations (eg UN, NATO). The present article attempts to address these issues against the background of international and European law. Even though the legal basis of the Operation is clear from a European law perspective, there have been certain misconceptions concerning the legal basis of the Operation under international law. The delineation of the Operation's legal framework requires a careful analysis of the rules applicable to each of its phases and of its addressees, since each phase is subject to different rules which are binding on different actors. Finally, there is an extensive discussion of questions of responsibility, which were heavily influenced by the applicable Rules of Engagement and of the actual conduct of the Operation. The conclusion is that, at least on the high seas, responsibility should primarily rest with the flag States rather than with the EU. However, in most cases the EU is indirectly responsible for violations of international law, except in cases where suspected pirates are transferred to third States pursuant to EU agreements with such States, in which case it bears primarily responsibility.

Transitional constitutionalism and the case of the arab spring

Abstract: This paper seeks to explore the relationship between the framework of transition and the enactment of a new constitution for Egypt. It does so by using the relatively under explored concept of transitional constitutionalism, interrogating some of the key claims on which transitional constitutionalism is based, and questioning their application in the Egyptian context. By doing this the paper explores the broader paradox of the imposition of a framework of transition that is rooted in principles of liberalism in the context where liberalism is far from the agreed or prevailing political model.

The uk government‘s legal opinion on forcible measures in response to the use of chemical weapons by the syrian government

Abstract: On 29 August 2013, the UK government published a memorandum setting out its ‘position regarding the legality of military action in Syria following the chemical weapons attack in Eastern Damascus on 21 August 2013’. While other States had contemplated some form of military action, most notably the US, none had been as clear and candid as to the legal basis upon which this would be launched. It might seem in this respect perhaps a little surprising that the UK decided in its relatively brief opinion that ‘the legal basis for military action would be humanitarian intervention’. As this article will attempt to highlight, this basic justification is far from uncontroversial. This short article will seek to be clear as to what the UK's legal position exactly was, whether and how this position can be reconciled with the lex lata governing the use of force for humanitarian purposes and its immediate impact upon it, and finally offer some reflections upon the contribution the opinion and its central legal argument has made to future legal argumentation in this area.

Eu loyalty as good faith

Abstract: Comparing the EU law principle of loyalty with international law good faith and the duty of federal good faith in German constitutional law (Bundestreue), this article contributes to the discussion on the nature of the EU legal order and its relationship to international law more generally by finding that EU loyalty is in essence a specific incarnation of the international law principle that treaties are to be interpreted in good faith. At the same time, it challenges the assumption that international law good faith differs fundamentally from federal good faith. To this end, the article points at historical links between both, and posits that good faith is in essence a principle of constructive interpretation, the strictures of which increase with the level of integration of the legal order in which it is applied.

Arbitrary withholding of consent to humanitarian assistance in situations of disaster

Abstract: Following a large-scale disaster, such as a major earthquake, tsunami or cyclone, tens of thousands of persons are often displaced, suffer from food shortages and in need of medical assistance. In situations in which the State affected by the disaster does not meet the needs of the affected persons itself, humanitarian assistance from outside the State might be required. This article considers the role of consent to external humanitarian assistance on the part of the affected State. As there is no single overarching treaty in the area of humanitarian assistance in situations of disaster, the article explores the role of consent in the various disaster-specific, subject-specific and region-specific treaties as well as in the soft law instruments in the area. Although the instruments take seemingly different approaches to the subject, a common standard is identified, namely that consent on the part of the affected State is required before external assistance can be provided but that consent cannot be arbitrarily withheld. The article then goes on to give content to the arbitrary withholding standard, breaking it down into its substantive and procedural elements. These include the meaning of the term ‘arbitrary’; the requirement to provide a reason for the withholding of consent; legitimate grounds for withholding consent; and the actor that assesses the justification. Regard is had for State practice in the context of disasters as well as other areas of the law in which similar tests are used.

The diverging approaches of the european court of human rights in the cases of nada and al-dulimi

Abstract: The UN Security Council's practice of targeted sanctions has resulted in serious limitations on the enjoyment of targeted individuals' human rights. The European Court of Human Rights pronounced on this issue in two instances. In the cases of Nada (Grand Chamber judgment) and al-Dulimi (Chamber judgment) the Court was asked to evaluate the lawfulness of the domestic implementation of sanction measures against the ECHR. Surprisingly, each Chamber opted for a different solution. The present article will discuss these solutions and evaluate them within the broader framework of international law, the Court's jurisprudence, and the conflicting interests involved.

State secrets law and national security

Abstract: With the increased awareness of national security concerns associated with unauthorized disclosure of State secrets, the legal protection of State secrets on national security grounds has assumed renewed significance, while raising ever growing concerns about its impact on freedom of information. Between these competing policy concerns lies a discrete area of law that defines and protects State secrets from unauthorized communication or disclosure. This article aims to ascertain the actual State practice concerning State secrets protection on national security grounds across different countries, and examines common challenges to the delimitation of national security grounds for State secrets protection in light of the changing national security environment.

Foreign fads or fashions? the role of comparativism in human rights law

Abstract: Although there is a broadly similar core of human rights law and courts in different jurisdictions face strikingly similar questions, the use of comparative law in the human rights context remains controversial. Reference to foreign human rights materials is regarded as undemocratic, selective and misleading. Rather than searching for a single ‘right answer’, or expecting convergence, this article addresses these challenges from a deliberative perspective. A deliberative approach requires decisions to be taken on the basis of reasons which are thorough and persuasive. Even where outcomes diverge, there need to be good reasons, whether textual, institutional, or cultural. Comparative materials constitute an important contribution to this process. Part I critically assesses various alternative potential functions of comparative law. Part II develops the deliberative model while Part III addresses the main critiques of comparative law. Part IV tests the deliberative approach against a selection of cases dealing with two particularly challenging issues confronted by courts in different jurisdictions, namely the use of substantive principles such as dignity, and the application of justification or limitation clauses in the context of prisoners' right to vote. Case law is drawn from countries which already cite each other and which have broadly similar institutional frameworks: the USA, Canada, South Africa, India, Australia, the UK, New Zealand and the European Court of Human Rights to the extent that it too considers comparative law.

The political unconscious of the English foreign act of state and non-justiciability doctrine(s).

Abstract: This article reviews the history and politics of the English foreign act of State and non-justiciability doctrines in light of recent judgments in Belhaj and Rahmatullah. It argues that the doctrines have a political unconscious—a term borrowed from literary theorist Fredric Jameson—and that an appreciation of this should inform the Supreme Court's approach to the forthcoming appeals.

State and diplomatic immunity and employment rights: european law to the rescue?

Abstract: The issues of State and diplomatic immunity in cases involving persons employed by foreign States in embassies or consulates or engaged directly by diplomats remain controversial. The focus of this article is on recent developments in European law, in particular under the European Convention on Human Rights, the Brussels I Regulation and the Charter of the European Union, the effect of which has been to enhance the rights of employees of foreign States. Analysis is also made of the United Nations Convention on Jurisdictional Immunities of States and their Property and the current domestic practice of States with the aim of identifying the present international law standard on State immunity and embassy and consular employment. Employees of diplomats, however, remain inadequately protected and this article considers possible strategies for improving their position.

The influence of eu and european human rights law on english private law.

Abstract: This article examines the extent to which EU and European human rights law, following the enactment of the European Communities Act 1972 and the Human Rights Act 1998, have changed the manner in which English courts use comparative law in the private law field. Despite legislative intervention rendering EU law part of the national legal system and requiring the courts ‘to take into account’ the jurisprudence of the European Court of Human Rights, there remains evidence that private law courts retain a preference for comparisons within the common law world. This article will examine, with reference to a number of recent empirical studies, the reasons for this position and what this signifies in terms of future comparative law reasoning.

The reparative effect of truth seeking in transitional justice

Abstract: The benefits of a ‘holistic’ approach to transitional justice are enhanced by considering how synergies between different transitional mechanisms may be optimized. Drawing upon multiple examples, this article explores the potential contribution of truth seeking to reparation efforts at a normative, institutional and operational level. The article emphasizes the importance of an awareness of the reparative potential of truth seeking on the part of those implicated in its design and implementation, as well as an appreciation of the influence of contextual factors on a delicate process. It cannot be conceived of simply as a technocratic exercise, but as an inherent part of empowering victims.

The changing dynamics of the global intellectual property legal order: emergence of a ‘network agenda’?

Abstract: The Anti-Counterfeiting Trade Agreement (ACTA) had sought to augment intellectual property (IP) enforcement practices, to counter the proliferation of counterfeit and pirate goods and to regulate digital infringements. This paper examines the collapse of ACTA and challenges the traditional orientation of the debate concerning the tension between the ‘enforcement’ and ‘development’ agendas. The ACTA negotiating partners, mainly developed states, created a forum outside the aegis of international IP norm-making bodies to avoid the distractions posed by developing countries whilst promoting an alternative ‘enforcement agenda’. Despite this effort, ACTA collapsed from ‘within’. The paper argues that ACTA failed due to the extemporaneous emergence of a random configuration of civil society groups, academics, ‘netizens’ and legislators within ACTA negotiating countries independently pursuing an agenda that can be called the ‘network agenda’. This new agenda aimed to protect the right to privacy, data protection and freedom of speech within the digital medium. While current debates on the global IP legal order are generally limited to, and characterised by the Global North-South considerations, the ‘network agenda’ cuts longitudinally through territorial configurations and squarely places the interests of the IP owner against those of the public. Consequently, the paper highlights the potential of the network agenda to dilute the existing polarities in the IP debate and impact on the dynamics of international intellectual property law by creating an inclusive platform within IP discourse that attempts to integrate colliding rationalities present within the world society.

Non-statutory executive powers: assessing global constitutionalism in a structural-institutional context

Abstract: This article analyses the source, nature, and use of unilateral, non-statutory executive powers, frequently employed as a governance tool but rarely studied in a comparative context. Exercised in the absence of direct statutory authorization, such powers are often invoked by executives in emergency and foreign affairs contexts, but are equally central to domestic policy-making. Unilateral executive power challenges two central democratic values that support the separation of powers ideal: representation and deliberation. Different structural treatments of these powers are considered through a comparison of three constitutional regimes, those of the United States, the United Kingdom and Israel. Despite material structural differences between these systems, the emerging patterns are similar enough to support the argument that direct law-making by the executive is an unavoidable element of the political sphere. Developing a template for comparison analysis, this article shows that a pattern of functional convergence has emerged, unsupported by overt transplantation or borrowing between these systems. The results set a possible challenge to the growing recognition of global world constitutionalism, at least in structural-institutional contexts.

Comparative perspectives on arbitrary deprivation of nationality and refugee status

Abstract: The question of whether arbitrary deprivation of nationality constitutes persecution for the purposes of a determination of refugee status has received increased attention in recent jurisprudence. However, no systematic argument has been made to date on the ordinary meaning of words, context, object and purpose of article 1A(2) of the 1951 Convention Relating to the Status of Refugees as it applies to stateless refugees. This is an important question because the absence of determination procedures and a protection regime specifically for stateless persons in many jurisdictions makes refugee and/or complementary protection the only options. This article examines existing landmark judicial decisions worldwide, relevant UN documents, and academic writing on whether arbitrary deprivation of nationality, either on its own or when taken with other forms of harm, amounts to persecution within the meaning of article 1A(2) of the 1951 Refugee Convention, and if so on what grounds. It concludes by suggesting when (arbitrary) deprivation of nationality should lead to a finding of persecution, based on good practice, and points to a global consensus on a new rights perspective of nationality.

Implications of the indus water kishenganga arbitration for the international law of watercourses and the environment

Abstract: On 19 February 2013, a Permanent Court of Arbitration (PCA)-administered Court of Arbitration issued a Partial Award on the dispute between Pakistan and India regarding the use of the waters of the Kishenganga/Neelum, a tributary of the Indus system of rivers. This article examines the tribunal's decision, which was mainly limited to interpreting the 1960 Indus Water Treaty (IWT), and its contribution to international environmental law and the law of non-navigational uses of international watercourses. After briefly discussing the dispute's factual context and procedural history, the article critiques the tribunal's methodology, which was based on an inconsistent application of the principles of treaty interpretation. The Award's contribution is therefore mixed: despite its almost complete disregard for the principle of ‘equality of right’, it has contributed to clarifying the criteria for determining ‘existing uses’ of a watercourse and reaffirmed both the substantive obligation to refrain from causing transboundary harm and the procedural duty to carry out an Environmental Impact Assessment under international environmental law.

Evolving interpretation of multilateral treaties: ’acts contrary to the purposes and principles of the united nations’ in the refugee convention

Abstract: The 1951 Refugee Convention does not apply to a person with respect to whom there are serious reasons for considering that ‘he has been guilty of acts contrary to the purposes and principles of the United Nations’ (Article 1(F)(c)). To date, this exclusion clause has generally been interpreted by courts, commentators and UNHCR in a static manner which fails to take into account developments in international law and practice. This paper considers the ‘evolutive approach’ to treaty interpretation, generally, and applies this approach, alongside standard rules of treaty interpretation, to Article 1(F)(c). This paper challenges a number of assertions commonly made regarding this clause, and concludes that it should be interpreted to the effect that conduct amounting to serious or sustained human rights violations, such that would constitute ‘persecution’ for the purposes of Article 1(A)(2) of the Convention, meets the standard for exclusion under Article 1(F)(c).

Choice-of-court agreements, the italian torpedo, and the recast of the brussels i regulation

Abstract: The Recast of the Brussels I Regulation (1215/2012/EC) reforms EU law on jurisdiction in civil and commercial matters and includes long-awaited changes designed to prevent the use of the abusive tactic known as the Italian Torpedo to frustrate choice-of-court agreements. The new rules give priority in determining jurisdiction to a court designated by a prima facie valid agreement, even if litigation underway elsewhere was first in time. While this development has been broadly welcomed, it is unclear if the Recast's solution applies to related actions underway in other states as well as identical actions. Using a recent case from the Irish Supreme Court, in this article, we highlight that this possible omission could create significant problems, and calls into question the comprehensiveness of the Recast's solution to the problem of the Italian Torpedo.

Companies and their fundamental rights: a comparative perspective

Abstract: This article explores the case law of the European Court of Human Rights, the European Court of Justice and the US Supreme Court on the fundamental rights of commercial companies. The rights considered include property, the privilege against self-incrimination, freedom of speech, double jeopardy, the right to make political donations, and the freedom of religion. The article highlights the dangers of taking the fundamental rights of companies too far, as has recently occurred in the US; and it advocates a cautious and coordinated approach to this delicate issue, which has become increasingly important on both sides of the Atlantic.

Localizing global competition law in vietnam: a bottom-up perspective

Abstract: Global laws are an important inspiration for commercial law reforms around the world. Much analysis of this phenomenon emphasizes the capacity of regulatory elites, such as lawmakers, courts and lawyers, to adapt global laws to local conditions. What is often absent from this top-down analysis is a wide-ranging consideration of what the regulated think about global laws. This article aims to redress this shortcoming in the comparative literature by drawing fresh perspectives from bottom-up responses to global laws. It takes from socio-legal scholarship a framework for analysing the interface between thought formation and social action and explores the question—how do the regulated conceptualize and localize global laws? If compliance is socially constructed from below, as this literature suggests, then attempts to understand legal globalization by focusing exclusively on regulatory elites misses much of the localization story.

The unidroit principles of international commercial contracts and investment treaty arbitration: a limited relationship

Abstract: The UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers the use of the Principles by investment tribunals on questions of both domestic law and international law. It suggests that reference to the Principles can play an important legitimating role on questions of domestic law, but that this should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

Antisuit injunctions in support of arbitration: west tankers still afloat

Abstract: In its eagerly awaited judgment in Gazprom, the CJEU declined to follow the Opinion of Advocate General Wathelet that West Tankers is no longer good law. The West Tankers case decided that the courts of one Member State are precluded from granting antisuit injunctions directed at proceedings in the courts of another Member State, even if the proceedings in which the injunction is granted fall outside the scope of the Brussels Regulation by reason of the fact that they are concerned with arbitration. The Gazprom case confirms that West Tankers is still good law.

Religion, children and employment: the baby loup case

Abstract: This article offers a systematic analysis of the plenary Chamber of the French Cour de Cassation's final decision in the Baby Loup case which held that a private nursery had acted lawfully when requiring an employee to remove her jilbab at work, in accordance with the religious neutrality requirements of the nursery's policy. The article examines the decision in light of ECHR and French domestic legal requirements. First, it is argued that laicite—rightly held to be irrelevant—still unduly taints the reasoning. As a result, proportionality and anti-discrimination provisions are not properly applied. Secondly, the decision is compared and contrasted with recent ECtHR cases, notably Eweida and Others v UK. It is argued that a Baby Loup-type restriction does not meet ECHR standards. Additionally the margin of appreciation, used by the ECtHR to save the French ban on the full-covering of the face in the SAS case, should not, as will be demonstrated, come into play in a Baby Loup context.

A new stratosphere? investment treaty arbitration as ‘internationalized public law’

Abstract: The idea of investment treaty arbitration as public law is in tension with the concept of international law as a law between representative public agencies. This concept of international law is valuable for its capacity to progress a broad range of public policy aims in an integrated and coordinated manner, including aims extending beyond the economic sphere such as international social, environmental, cultural and related aims. The probable effect on this concept of international law of a radical ‘internationalized public law’ approach to investment treaty arbitration requires further thought, especially with regard to the potential implications of recognizing investor rights under international law.