Showing papers on "Public international law published in 2005"

Imperialism, sovereignty, and the making of international law

Abstract: Acknowledgements Table of cases Table of treaties Introduction 1. Francisco de Vitoria and the colonial origins of international law (i) Introduction (ii) Vitoria and the problem of universal law (iii) War, sovereignty and the transformation of the Indian (iv) Conclusion 2. Finding the peripheries: colonialism in nineteenth-century international law (i) Introduction (ii) Elements of positivist jurisprudence (iii) Defining and excluding the uncivilized (iv) Native personality and managing the colonial encounter (v) Reconceptualizing sovereignty 3. Colonialism and the birth of international institutions: the mandate of the League of Nations (i) Introduction (ii) Creation of the mandate system (iii) The league of nations and the new international law (iv) The mandate system and colonial problems (v) The mandate system and the construction of the non-European state (vi) Government, sovereignty, and economy (vii) The mandate and the discussion of sovereignty (viii) The legacies of the mandate system: toward the present (ix) Conclusion 4. Sovereignty and the post-colonial state (i) Introduction (ii) Decolonization and the universality of international law (iii) Development, nationalism and the post-colonial state (iv) Development and the reform of international law (v) Permanent sovereignty over natural resource and the new international economic order (vi) The 1962 resolution on PSNR (vii) The 1974 charter of rights and duties among states (viii) Colonialism and the emergence of transnational law (ix) Sources of law and international contracts (x) Overview and conclusions 5. Governance and globalization, civilization and commerce (i) Introduction (ii) Good governance and the third world (iii) Governance, human rights and the universal (iv) International financial institutions, human rights and good governance (v) International financial institutions and the mandate system (vi) Conclusions and overview 6. On making war on the terrorists: imperialism as self-defense (i) Introduction (ii) The war against terrorism (WAT) (iii) The United States and imperial democracy (iv) Historical origins: war, conquest and self-defense (v) Terrorism and the United Nations: a Victorian moment (vi) Terrorism, self-defense and third world sovereignty Conclusion.

The limits of international law

Abstract: 1. Introduction PART I: CUSTOMARY INTERNATIONAL LAW 2. A Theory of Customary International Law 3. Case Studies PART II: TREATIES 4. A Theory of International Agreements 5. Human Rights 6. International Trade PART III: RHETORIC, MORALITY, AND INTERNATIONAL LAW 7. A Theory of International Rhetoric 8. International Law and Moral Obligation 9. Liberal Democracy and Cosmopolitan Duty 10. Conclusion

The Rights of War and Peace

Abstract: Since the nineteenth century, Hugo Grotius' "Rights of War and Peace" has commonly been seen as the classic work in modern public international law, laying the foundation for a universal code of law. However, in the seventeenth century and during the Enlightenment, the work was considered a major work of political theory that strongly defended the rights of individual agents - states as well as private persons - to use their power to secure themselves and their property. Grotius' continuing influence owed much to the eighteenth-century French editor Jean Barbeyrac, whose extensive commentary was standard in most editions, including the classic, anonymously translated, English one (1738), which is the basis for the Liberty Fund edition. The present edition also includes the Prolegomena to the first edition of "Rights of War and Peace" (1625); this document has never before been translated into English, and adds new dimensions to the great work.

The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions

Abstract: Bilateral and multilateral investment treaties, such as NAFTA, give foreign investors substantive rights - such as freedom from expropriation - as well as the right to sue host governments for violations of the substantive rights enumerated in the investment treaties. In the last five years, the number of arbitrations arising under investment treaties has skyrocketed; billions of taxpayer dollars are at stake and government conduct, which would otherwise past domestic muster, is subject to enhanced international scrutiny. The proliferation of these bilateral and multi-lateral investment treaties has led to an unprecedented increase in the number of arbitration tribunals convened to resolve investor-state disputes. Arbitral tribunals are now testing and evaluating a variety of international law rights for the first time. These private tribunals consider legal issues that impact the international economy, public policy and international relations, but they do so in a vacuum largely because of gaps in the academic literature and confidentiality obligations that prevent public decision-making. Substantive obligations in investment treaties are remarkably similar; notwithstanding these similarities, in the absence of valuable guidance from scholars or appellate bodies, arbitral tribunals have come to inconsistent decisions on the meaning of fundamental international law rights. This Article recommends a framework for analysis as well as a series of reforms designed to prevent inconsistent decisions from occurring and to correct inconsistencies when they occur. In terms of preventative measures, the article is a call to arms for academics to contribute to the literature in this emerging discipline to provide authoritative guidance for tribunals to use during the decision making process; it also recommends changes to institutional rules and treaties to enhance transparency and promote public scrutiny. In terms of corrective measures, this article rejects the treaty-by-treaty approach previously suggested within the literature. Instead, it proposes the creation of one independent and permanent appellate body with the authority to review awards rendered under the entire investment treaty network. These measures will promote the integrity and legitimacy of a private dispute resolution system with wide-ranging public implications.

International Organizations As Law-makers

Abstract: Acknowledgments Foreword: The Need for Organizational Insights 1. Introduction PART I: INTERNATIONAL INSTITUTIONAL LAW: SELECTED ISSUES 2. Constitutional Interpretation 3. (Re) Introducing International Institutional Law 4. The Varied Forms of International Institutional Law PART II: MULTILATERAL TREATY- MAKING 5. International Organizations as Treaty-Makers 6. Have IOs Improved Treaty-Making? PART III: INSTITUTIONALIZED DISPUTE SETTLEMENT 7. Dispute Settlement by 'Non-judicial' Actors 8. Dispute Settlement by 'Quasi-Judicial' and 'Judicial' Bodies 9. The Nature of International Adjudication 10. The Promise and Perils of International Organizations Index

Judicial Independence in International Tribunals

Abstract: TABLE OF CONTENTS Introduction 3 I. Background on Intemational Dispute Resolution 8 II. Independence and the Role of Intemational Tribunals 12 A. Independence in the Domestic and Intemational Spheres 12 B. Why States Use Intemational Tribunals 14 1. Information Disclosure in Treaty Disputes 15 2. Infonnation Disclosure in Customary Intemational Law Disputes 18 3. The Dispute Resolution Mechanism 20 C. The Design of Dispute Resolution Mechanisms 22 1. The Single Arbitrator 22 2. Three (or More) Arbitrators 23 3. From Arbitration to Courts 24 4. Measuring Tribunal Independence 26 D. Measurements of Effectiveness 27

International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order

Abstract: Hegemony and international law are often regarded as irreconcilable: international law is widely assumed to depend on a balance of power and to be eschewed by hegemons in favour of political tools. This corresponds to an often idealized contrast between international law and international politics, one reflecting reason and justice, the other brute power. Realists and critical legal scholars have long sought to counter this idealization, but often by merely reducing international law to power. This article seeks to go beyond these positions by analysing the multiple ways in which dominant states interact with international law. Drawing on international relations theory, it develops a model of this interaction and illustrates it with historical examples, taken mainly from Spanish, British and American phases of dominance. The typical pattern observed is one of instrumentalization and withdrawal, coupled with attempts at reshaping international law in a more hierarchical way and at replacing it with domestic legal tools that better accommodate formal hierarchies. The resulting picture should provide a starting point for critique and help us better understand why international law is simultaneously instrumental and resistant to the pursuit of power. International law is important for powerful states as a source of legitimacy, but in order to provide legitimacy, it needs to distance itself from power and has to resist its mere translation into law. International law then occupies an always precarious, but eventually secure position between the demands of the powerful and the ideals of justice held in international society.

Toward a General Margin of Appreciation Doctrine in International Law

Abstract: Three recent International Court of Justice decisions - Oil Platforms, Avena and Wall in the Occupied Palestinian Territory - highlight the uncertain status of the margin of appreciation doctrine in the Court's jurisprudence. The purpose of this article is to evaluate, in the light of contemporary practice of other courts, the current status under international law of the margin of appreciation doctrine, which encourages international courts to exercise restraint and flexibility when reviewing the decisions of national authorities, and to offer preliminary guidelines for future application. The article also discusses a variety of policy arguments concerning the legitimacy and effectiveness of international courts, which can be raised in support of the development of a general margin of appreciation doctrine with relation to some categories of international law norms governing state conduct, and it examines potential criticism. Eventually, it argues that the same considerations which have led to the creation of 'margin of appreciation type' doctrines in the domestic law of many states and in the context of specific international regimes (for instance, the European Convention on Human Rights) also support the introduction of the doctrine into general international law. The position of the ICJ towards the application of the doctrine therefore merits reconsideration.

Non-State Actors and Human Rights

Abstract: PART I: INTRODUCTION 1. The 'Not-a-Cat' Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors? 2. The Changing International Legal Framework for Dealing with Non-State Actors PART II: NON-GOVERNMENTAL ORGANIZATIONS AND INTERNATIONAL ORGANIZATIONS AS NON-STATE ACTORS 3. The Evolving Status of NGOs under International Law: A Threat to the Inter-State System? 4. Economic, Social, and Cultural Rights and the International Monetary Fund PART III: CORPORATIONS 5. Catching the Conscience of the King: Corporate Players on the International Stage 6. Corporate Responsibility and the International Law of Human Rights: The New Lex Mercatoria 7. The Accountability of Multinationals for Human Rights Violations in European Law 8. Human Rights Responsibilities of Businesses as None-State Actors Bibliography on Non-State Actors in International Law

Handbook of international law

Abstract: To the new student of international law, the subject can appear extremely complex: a system of laws created by states, international courts and tribunals operating at the national and global level. A clear guide to the subject is essential to ensure understanding. This handbook provides exactly that: written by an expert who both teaches and practises in the field, it focuses on what the law is; how it is created; and how it is applied to solve day-to-day problems. It offers a practical approach to the subject, giving it relevance and immediacy. The new edition retains a concise, user-friendly format allowing central principles such as jurisdiction and the law of treaties to be understood. In addition, it explores more specialised topics such as human rights, terrorism and the environment. This handbook is the ideal introduction for students new to international law.

Prosecuting International Crimes: Selectivity and the International Criminal Law Regime

Abstract: Table of cases Table of treaties Table of abbreviations Introduction 1. The development of international criminal law 2. International criminal law 3. International criminal tribunals and the regime of international criminal law enforcement 4. Selectivity in international criminal law 5. Selectivity and the law I 6. Selectivity and the law II.

International Human Rights Law as Power/Knowledge

Abstract: It is often noted that the modern human rights discourse is predominately a discourse of international law. Interest groups, nongovernmental organizations, major international organizations, and states all accept that the global human rights regime is a legal construct. Scholarly work on human rights also adopts a predominately legal approach, as shown by several surveys of the literature and the human rights curriculum at the university level. This article places international human rights law within the context of critique in an effort to explain the hegemony of law within the human rights discourse. It begins with a discussion of the nature of human rights discourse as it is practiced in the current world order. It then moves to introduce the idea of discipline in world order, in particular "market discipline," which provides the dominant set of values upon which international action is undertaken. An additional section looks at the tensions between international human rights law and the norms that describe "market discipline." Finally, the conclusion is that international human rights law offers a discourse of both freedom and domination.

The "war on terror" and the framework of international law

Abstract: The acts of lawlessness committed on September 11, 2001 were followed by a 'war on terror'. This book sets out the essential features of the international legal framework against which the '9/11' attacks and the lawfulness of measures taken in response thereto fall to be assessed. It addresses, in an accessible manner, relevant law in relation to: 'terrorism', questions as to 'responsibility' for it, the criminal law framework, lawful constraints on the use of force, the humanitarian law that governs in armed conflict, and international human rights law. It indicates the existence of a legal framework capable of addressing events such as '9/11' and governing responses thereto. The author examines the compatibility of the 'war on terror' with this legal framework, and questions the implications for states responsible for violations, for third states and for the international rule of law.

Recognized and Violated by International Law: The Human Rights of the Global Poor

Abstract: Various human rights are widely recognized in codified and customary international law. These human rights promise all human beings protection against specific severe harms that might be inflicted on them domestically or by foreigners. Yet international law also establishes and maintains institutional structures that greatly contribute to violations of these human rights: fundamental components of international law systematically obstruct the aspirations of poor populations for democratic self-government, civil rights, and minimal economic sufficiency. And central international organizations, such as the WTO, the IMF, and the World Bank, are designed so that they systematically contribute to the persistence of severe poverty.

Freedom from Want: The Human Right to Adequate Food

Abstract: List of Tables and Figures Foreword by Jean Ziegler Acknowledgments Introduction: Taking Rights Seriously Part I. Foundations Chapter 1. Food and Nutrition Malnutrition Causes of Malnutrition Growth Measurement Numbers of Malnourished People Malnutrition and Mortality Comparative Morality Food and Nutrition Security Varieties of Government Action Chapter 2. The International Human Rights System Historical Foundations International Humanitarian Law The International Bill of Human Rights Children's Rights Regional Human Rights Agreements Human Rights Agencies United Nations Charter Bodies United Nations Treaty Bodies Civil Society Organizations Informal Civil Society Chapter 3. Adequate Food is a Human Right Economic, Social, and Cultural RightsFood in International Human Rights Law Food in International Humanitarian Law Global Declarations and Commitments General Comment 12The Special RapporteurThe Voluntary Guidelines Part II. Human Rights Systems Chapter 4. Human Rights, Governance, and Law Human Rights and Governance Studying Human Rights in National Governance The Role of National LawUniversal Human Rights and the Role of International Law Chapter 5. Rights/Entitlements DefinitionMoral versus Legal RightsSoft versus Hard RightsRights as Goals Rights Imply EntitlementsDetermining Local EntitlementsHaving versus Realizing Rights Chapter 6. Obligations and Commitments Moral Responsibilities When Do Governments Do Human Rights Work? Levels of Government ObligationEconomic Rights The Obligation of Good Governance Obligations of Nonstate Actors Questionable Charity Chapter 7. Accountability MechanismsVarieties of Accountability Justiciability Remedies for Rights Holders National and Local Human Rights AgenciesAccountability through Public Action Chapter 8. India The Supreme Court Case Starvation is Not the Problem The Missing Piece in India's Rights SystemThe Tamil Nadu Integrated Nutrition Project Chapter 9. Brazil Chapter 10. The United States Chapter 11. Feeding InfantsBreast-Feeding RightsInfants' Human Right to Adequate Food Principles Women's Right to Breast-Feed versus Infants' Right to be Breast-Fed Chapter 12. Feeding Infants of HIV-Positive Mothers Official Guidance on HIV/AIDS and Infant Feeding Issues A Court Case Informed Choice Principles Chapter 13. Water The Household Water Problem Water Rights are DifferentGeneral Comment 15 Chapter 14. TradeIssues The Human Right to Adequate Food in Relation to Trade Reconciling Different Frameworks Food Sovereignty Chapter 15. RefugeesIssues in Refugee NutritionExplanations and Justifications for Uneven ServicesThe Human Right to Adequate FoodThe Adequacy QuestionSpecifying the ObligationsLimiting the ObligationsThe Work Ahead Chapter 16. International Humanitarian AssistanceIssuesRights to AssistanceThe Provider's Motivation Implementation Chapter 17. Global Human RightsGlobal Rights and Global ObligationsGlobal Accountability Strategic Planning Sources ReferencesIndex

Between Power and Principle: An Integrated Theory of International Law

Abstract: Today, over 50,000 international treaties are in force, covering nearly every aspect of international affairs and nearly every facet of state authority. And yet many observers continue to argue that international law - with its general absence of central enforcement and its typically voluntary character - is ineffective, if not meaningless. This Article assesses and responds to this challenge, focusing on the largest area of public international law - treaties. Combining insights from both political science and legal scholarship, it offers a theory of state decisions regarding treaty laws that accounts for the key ways in which such laws shape state behavior. This integrated theory of international law seeks to explain why countries would commit to treaties that potentially constrain their behavior and how the treaty, once accepted, influences or fails to influence state behavior. I argue that commitment and compliance are reciprocal influences on each other. If compliance is very costly or carries few benefits, for instance, countries will be unlikely to join a treaty in the first place. As a result, states behave in ways that standard theories miss - failing to join treaties, for example, that they could easily comply with, or joining treaties that they have little inclination to obey. The theory emphasizes two central means by which treaties shape what countries do. The first is the enforcement of international treaties by transnational actors and by rule of law institutions within nations that join the treaty. In particular, domestic enforcement mechanisms are a crucial force pushing countries to comply with international treaties - and because they are, they are also a key influence upon countries' willingness to join such treaties in the first place. The second is the collateral consequences of treaty membership - that is, the anticipated consequences for, among other things, foreign aid and investment, trade, and domestic political support. Collateral consequences arise when domestic and transnational actors premise their actions toward a state on the state's decision to accept or not accept international legal rules. As I demonstrate using both new empirical evidence and reanalysis of earlier studies, the relationship between treaties and state behavior hinges significantly on these two factors. The Article thus offers a vision of the potential and the limits of international law that integrates and moves beyond existing accounts.

Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis

Abstract: The increased fragmentation of international law has been accompanied by a more problematic phenomenon: institutional fragmentation that has strengthened the role of specialised regimes (e. g., WTO, EU, human rights and environmental regimes) within the international legal system. "The emergence of seemingly independent subregimes has given rise to a number of legal concerns – among these is the existence of normative conflicts between regimes." In a recent report by the Chairman of the ILC Study Group on Fragmentation of International Law, Martti Koskenniemi, dealt with the role of the lex specialis maxim as a means of addressing the relation between selfcontained regimes and general international law. This article argues that an application of lex specialis , although widely accepted, is impeded by its conceptual vagueness. Lex specialis may be well-suited to resolve certain types of normative conflicts, such as conflicts within sub-regimes, which may be viewed as a more traditional manifestation of normative conflicts. The fragmentation of international law, however, has also created new types of conflicts, namely those between different, seemingly independent normative orders. The article suggests that the lex specialis maxim is a less-suitable approach to normative conflicts between such unrelated normative orders. In a fragmented legal system such as that of international law, these types of conflicts may, accordingly, prove a particular challenge.

Neo-Humanitarianism: The Role of International Humanitarian Norms and Organizations in Contemporary Conflict

Abstract: The circumstances and nature of humanitarianism have changed in recent years. The traditional ideals of neutrality, impartiality, and independence have become myth. Rather than being at the margins of conflict, humanitarianism is now e mbedded within contemporary conflict. States use humanitarian norms and actors for their own ends, frequently as a response to international pressure to intervene in conflicts. Such actions, as well as those on the part of international humanitarian organizations and other nonstate actors, have altered the terrain of humanitarian action. KEYWORDS: armed conflict, humanitarianism, international humanitarian organizations, NGOs, norms. ********** On 7 October 2001, about two hours after the United States started bombing Afghanistan, Secretary of Defense Donald Rumsfeld stated that one of the six goals of the military operations was "to provide humanitarian relief to Afghans suffering truly oppressive living conditions under the Taliban regime." (1) Given the fact that the Bush administration had portrayed the conflict with the Taliban and Al-Qaida as a fight for national, and indeed civilizational, survival, why would Rumsfeld feel it necessary, or even desirable, to include the seemingly unrelated issue of humanitarian relief as one of the major goals of the war? What I would like to suggest is that global humanitarian action, and discourse over such action, has become such an increasingly visible feature of international relations that it has insinuated itself into a variety of political and operational situations. In fact, humanitarian norms have become so important that they force their way into the general discourse of war and peace. Furthermore, humanitarianism has become an extremely valuable public relations tool. Thus, a U.S. secretary of defense finds it useful to use humanitarianism to justify waging war in a remote corner of the world (from the perspective of the United States) and, in fact, may have felt normative pressure to do so. In this article, I argue that because of the changing nature of conflict, and other broad changes in international relations, we are entering an era of what I call neo-humanitarianism, which is characterized by the embeddedness of humanitarianism within, rather than at the margins of, contemporary conflict. It is distinguished by the explicit manipulation of humanitarianism for political or military gain on the ground in a conflict or as a substitute for political and military action. As a result, international humanitarian organizations (IHOs) (2) have found themselves being manipulated by a wide range of actors in the middle of conflict. At the same time, they have participated in this transformation of humanitarianism. The main questions to be addressed in this article are: Why is neutral humanitarianism increasingly becoming a fiction? Why do states turn to humanitarian actors? What are the implications of state reliance on humanitarian actors? What are the effects on these organizations and on humanitarian action more broadly? How do IHOs affect the conflict environment? What role do humanitarian norms play in conflict today? One of the main humanitarian actors is the UN High Commissioner for Refugees (UNHCR). Traditional theory would suggest that such an organization, being part of an intergovernmental body, would simply carry out the wishes of the larger state-based body and, further, that it could have no independent effects itself. However, Michael Barnett and Martha Finnemore, who look at the creation and role of international governmental organizations (IGOs) from sociological bureaucratic and constructivist perspectives point out that bureaucracies frequently do not do exactly what their originators intended them to do. We accept this when discussing, for example, domestic foreign policy bureaucracies but still seem to have a blind spot when it comes to international bureaucratic actors. …

Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order

Abstract: In 1825, Chief Justice Marshall of the Supreme Court of the United States, in THE ANTELOPE, asserted that “No principle of general law is more universally acknowledged than the perfect equality of nations.” The Charter of the United Nations Organization, 120 years later, stated that it was based “on the principle of the sovereign equality of all its Members.” Sixty years further on, barely any one, including the Secretary-General of the United Nations, subscribes to such ringing declarations of the primacy or exclusivity of national sovereignty, let alone that of the sovereign equality of states.

The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ

Abstract: This article aims to extract from the jurisprudence of the International Court of Justice a basic theory of legal effects of unilateral instruments of international organizations in public international law. These effects can be divided into three categories. The first is substantive effects. These include binding, authorizing and (dis)empowering effects. The second category is causative effects, which are the triggering effects that determinations of fact or of law have on substantive effects by bringing them into existence. The third category is modal effects – how and when the substantive effects come into existence (e.g. immediate or deferred, retroactive or non-retroactive, reversible or irreversible effect). Each of these categories of legal effects behaves differently according to whether the effects are intrinsic or extrinsic. Intrinsic effects are based on the special treaty powers of the United Nations Security Council and General Assembly. In this hypothesis, all three categories of effects exist to the full extent that the explicit and implicit powers of the adopting body allow for them. Extrinsic effects are directly based on general international law, in particular on the rules of formation of customary international law. Here, there are no causative effects. Substantive effects do not strictly speaking exist; only pre-substantive ones do. And modal effects are always immediate, non-retroactive.

Multinational Corporations, Transnational Law: The United Nation's Norms on the Responsibilities of Transnational Corporations as Harbinger of Corporate Responsibility in International Law

Abstract: This article considers the ramifications of current efforts to internationalize the regulation of corporate social responsibility The primary focus will be on current United Nations efforts to regulate transnational corporations through the development of its Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises With Regard to Human Rights The Norms are critically important for two reasons First, the Norms themselves point to the evolution of fundamental changes in global thinking about corporations, the character and source of their regulation that together will have significant ramifications for American domestic law The Norms evidence an increasing taste, at the international level, for a shift from a private to a public law basis for corporate regulation The corporate social responsibility debate is ultimately a debate about the fundamental character of corporations as principally private or public entities Second, the development and continued life of the Norms and the ideas it embodies illustrate the development of a mechanics of interplay between national, international, public and private law systems in allocating, and competing, for power to regulate The regularization and institutionalization of these mechanics evidence transnational law coming into its own as a separate field of power The article first briefly describes the traditional domestic context of the debates about so-called corporate social responsibility and its relation to basic issues of corporate governance The article then turns to the changing context in which the Norms were conceived A critical analysis of the Norms in this context points to potential critical changes in global consensus with significant ramifications for American domestic law First, the Norms considerably alter the framework of the debate about corporate social responsibility Corporations, seen as social, political, and economic actors, would serve not merely a broadened set of traditional stakeholders, but also the state and international community as well Traditional constraints on action against shareholders, and especially corporate shareholders, would be effectively disregarded for virtually all purposes Second, the Norms enlist transnational corporations as agents of international law implementation, even against states that have either refused to ratify certain international instruments or have objected to the gloss advanced by international institutions The Norms create an effective system for the implementation of international law norms through private law The Norms are implemented through the law of contract between individuals rather than by treaty or state action Because the Norms are based on a number of international instruments that have not been ratified by all states, the Norms use transnational corporations as a means of end-running states, and in the process, create the basis for the articulation of customary international law principles that will apply to states Third, the Norms substantially alter the balance of power over corporate governance between inside stakeholders (shareholders, lenders, etc) and outside stakeholders (community, society, the state) by providing a substantial role to NGOs to monitor TNC conformity to the requirements of the Norms The article ends with a preliminary consideration of the Norms in a broader context It analyses the Norms, not as substance, but as symptom of two great fundamental changes in the allocation of governance power in a global setting First, it illustrates rearrangements in the relative power of systems of domestic, international, public and private systems of governance Second, the Norms provide a template for the character and form of interaction and communication, among these systems of governance

Human Security: A Challenge to International Law?

Abstract: The concept of human security, which emerged in the 1994 UNDP Development Report, is on its way to changing the practice and institutions of global governance. The underlying issues of human security—a focus on the individual, the waning of state sovereignty and the rise of new actors, the shift in our understanding of security, the need and risks of “saving strangers” through humanitarian intervention, the reform of the Security Council, the conduct of complex peace missions, and the adequate reaction to new threats—pose a challenge to international law. As a value-based and people-centered approach to security, human security will contribute to normative changes in the international legal order.

International Law: A Welfarist Approach

Abstract: This paper evaluates international law from a welfarist perspective. Global welfarism requires that international law advance the well being of everyone in the world, and scholars influenced by global welfarism and similar cosmopolitan principles have advocated radical restructuring of international law. But global welfarism is subject to several constraints, including (1) heterogeneity of preferences of the world population, which produces the state system; (2) agency costs, which produce imperfect governments; and (3) the problem of collective action. These constraints place limits on what policies motivated by global welfarism can achieve, and explain some broad features of international law that otherwise remain puzzling. These features include the central place of state sovereignty in international law despite the moral arbitrariness of borders; the weakness of multilateral treaties; the limited role of individual liability in international law; the predominantly legislative nature of international institutions and the weakness of executive and judicial institutions; and the absence of redistributive obligations in international law.

Compliance with Decisions of the International Court of Justice

Abstract: INTRODUCTION 1. METHODOLOGY 2. THE LEGAL FRAMEWORK 3. THE ICJ PRACTICE ANALYzED 4. LESSONS TO BE LEARNED FROM THE PRACTICE CONCLUDING REMARKS ZUSAMMENFASSUNG (GERMAN SUMMARY) BIBLIOGRAPHY

Calvo's Grandchildren: The Return of Local Remedies in Investment Arbitration

Abstract: One of the purposes of investor/State arbitration is to avoid the use of local courts. Litigation in the host State’s domestic courts is often seen as lacking the objectivity that the investor desires. In addition, domestic courts are often bound to apply domestic law even if that law falls short of the standards provided by international law. The traditional international remedy in investor/State disputes is diplomatic protection. But diplomatic protection is contingent upon the exhaustion of local remedies. It does not free the investor from going to the host State’s courts. First going to the local courts of the host State meant delay and additional expense to the investor. But it also carried disadvantages for the host State. Public proceedings in the domestic courts are likely to exacerbate the dispute and may affect the host State’s investment climate. Once the host State’s highest court has made a decision, it may be more difficult for the government to accept compromise or a contrary international judicial decision. The Preamble to the ICSID Convention states that “while such [investment] disputes would usually be subject to national legal processes, international methods of settlement may be appropriate in certain cases.” It is for these and other related reasons that international investment arbitration dispenses with the requirement to exhaust local remedies, at least in principle. Article 26 of the ICSID Convention specifically does away with this traditional requirement “unless otherwise stated”.

Human Rights Violations By Multinational Corporations and International Law: Where from Here?

Abstract: The existing international framework of corporate human rights responsibility is inadequate because it does not prescribe clear human rights standards, is based upon flawed premises, relies excessively on states to enforce obligations, and offers no sanctions for non-compliance. There is, therefore, a need to establish a strong international mechanism as well as reconceptualise the guiding principles and approach of international law vis-a-vis MNCs. I argue that the proposed international mechanism should be based upon a partnership between the UN and the WTO for the promotion of human rights in the new economic order. The partnership, with active support from other international institutions, the media and NGOs, would both prescribe and enforce human rights standards against MNCs. Bringing human rights issues within the framework of the WTO, both at the stage of negotiation and of dispute settlement, would not only help regulate MNCs but would also provide sustainability and people's support to the new economic order. Further, it is also important that international law abandons its indirect approach to deal with MNCs and recognises them as "secondary limited" subjects, at least as far as human rights are concerned. MNCs should fall directly within the jurisdiction of international regulatory institutions, because the approach of indirect regulation has failed to deliver the desired results.

The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions

Abstract: The United Nations Security Council is the most powerful institutional body ever established at the global level. Its existence and powers, as based on the United Nations Charter, firmly evidence the support of the entire international community. At the same time, the will of the international community as a whole can be expressed at different levels and in different ways. In today's international law, there can be little doubt that the international community as a whole attaches special importance and effects to peremptory norms of general international law (jus cogens) and endows them with high status. The interaction between those high-ranking norms and the powers of the Security Council is therefore among the most central issues of international law. In searching for a preferable approach, it is proposed to consider the treaty-based character of the Security Council's powers. The Council is not free of legal limitations, and this conclusion cannot be rebutted even by referring to the classical debate on the interaction between the concepts of peace and justice in international relations, because the General Assembly and Security Council have repeatedly affirmed the relevance of the observance of law in maintaining and restoring international peace and security, notably with regard to the conflicts of the Middle East and Former Yugoslavia. Bearing all this in mind, this article will examine the scope and legal effects of the legal limitations imposed on the Security Council by the operation of peremptory norms.

Foreign Occupation and International Territorial Administration: The Challenges of Convergence

Abstract: International organizations have increasingly joined states as occupiers of territory. Yet international law doctrine and policymakers have regarded occupation by states and administration by international organizations as distinct legal and political phenomena. The stigma associated with state occupation has translated into an assumption that the two operations are governed by different norms and their tactics for asserting control subject to different standards of legitimacy. This article rejects that dichotomy and the doctrinal parsing that comes with it. It emphasizes the common traits and challenges of these occupations and argues for a joint legal and political appraisal. From the legal perspective, the two sorts of missions operate under common legal frameworks; those managing both need to find the proper balance among international humanitarian law, international human rights law, local law, and any mandate from an international organization. As a political matter, each encounters resistance from those in the territory opposed to its presence, leading to coercive responses whose legitimacy will be questioned from within and outside the territory. The article concludes with some modest thoughts on how each sort of occupier might learn something from the other.