Showing papers on "Sources of law published in 2009"

Accountability for Human Rights Atrocities in International Law

Abstract: PART I: SUBSTANTIVE LAW 1. Individual Accountability for Human Rights Abuses: Historical and Legal Underpinnings 2. Genocide and the Imperfections of Codification 3. Crimes Against Humanity and the Inexactitude of Custom 4. War Crimes and the Limitations of Accountability for Acts in Armed Conflict 5. Other Abuses Incurring Individual Responsibility under International Law 6. Expanding and Contracting Culpability: Complicity, Defenses, and Other Barriers to Criminality PART II: MECHANISMS FOR ACCOUNTABILITY 7. Mechanisms for Accountability: Framing the Issues 8. The Forum of First Resort: National Tribunals 9. The Progeny of Nuremberg: International Criminal Tribunals 10. Non-Prosecural Options: Investigatory Commissions, Civil Suits, Immigration Measures, and Lustration 11. Developing the Case: Comments on Evidence and Judicial Assistance 12. Developing the Case: Comments on Evidence and Judicial Assistance PART III: A CASE STUDY: THE ATTROCITIES OF THE KHMER ROUGE 12. The Khmer Rouge Rule over Cambodia: A Historical Overview 13. Applying the Law 14. Engaging the Mechanism PART IV: CONCLUSIONS 15. Striving for Justice: The Prospects for Individual Accountability Appendices

The Concept of ‘Law’ in Global Administrative Law

Abstract: What constitutes ' law ' in the effl orescent fi eld of ' global administrative law ' ? This article argues for a ' social fact ' conception of law, emphasizing sources and recognition criteria, but it extends this Hartian positivism to incorporate requirements of ' publicness ' in law ' Public- ness ' is immanent in public law in national democratic jurisprudence, and increasingly in global governance, where it applies to public entities rather than to identifi able global pub- lics Principles relevant to publicness include the entity's adherence to legality, rationality, proportionality, rule of law, and some human rights This article traces the growing use of publicness criteria in practices of judicial-type review of the acts of global governance entities, in requirements of reason-giving, and in practices concerning publicity and transparency Adherence to requirements of publicness becomes greater, the less the entity is able to rely on fi rmly established sources of law and legal recognition ' Private ordering ' comes within this concept of law only through engagement with public institutions While there is no single unifying rule of recognition covering all of GAL, there is a workable concept of law in GAL

The Present State of European Private Law

Abstract: The article attempts to assess where we stand today in our endeavours to create a common European private law. General contract law and sales law have been, and will continue to be, at the center of attention. Today we are faced with a bewildering variety of documents purporting to establish common ground, among them the Principles of Euroepan Contaract Law, the Acquis Principles, the Draft Common Frame of Reference, the Consumer Sales Directive, a Proposal for a Directive on Consumer Rights, the United Nations Convention for the International Sale of Goods, and the Principles of European Sales Law. The Article examines the relationship between these documents and asks to what extent they reflect a coherent and satisfactory picture of acquis communautaire and acquis commun. In other fields (special contracts other than sale and extra-contractual obligations), the search for doctrinal structures which are both recognizably European and teleologically adequate has only just begun. Finally there are subjects, such as the law of succession, where the very legitimacy of legal harmonization has been questioned. The article concludes that all areas of private law should become the subject of genuinely European, as opposed to national, scholarship but that none of them is ready to be cast into an official European instrument, whether under the name of Code, or Common Frame of Reference.

The Accountability of Armed Groups under Human Rights Law

Abstract: The starting point for this NWOI funded Ph.D. research is the observation that although UN accountability mechanisms are increasingly holding armed groups ‘accountable’ under human rights law, the legal basis for the responsibility of armed groups under human rights law remains controversial Structured into four parts, this study addresses the uncertainty at the core of the debate about whether and when armed groups are bound by human rights obligations. Part I of the study identifies the normative value that human rights law brings to the legal framework that applies in non-international armed conflicts vis-a-vis international humanitarian law. It shows that human rights law brings most value to activities connected to the exercise of authority over persons or territory, the maintenance of public order and the suppression of criminal activity outside the conduct of hostilities. Drawing on social science literature on rebel governance and armed conflict generally, the study demonstrates that there is significant added value in holding armed groups to account under human rights law. Part II of the study brings clarity to the circumstances in which armed groups can acquire obligations under international human rights law. It does this by conducting a comparative and theoretical analysis of the legal personality of armed groups under international humanitarian law, the law of belligerency and the law of insurgency. By analysing these legal frameworks, the study draws conclusions about the material and theoretical circumstances which are required for an armed group to acquire legal personality under human rights law. Part IV of the study brings clarity to how and when armed groups can be held bound by human rights norms. In doing so, the study considers whether the source of an armed group’s legal obligations under international law are most likely rooted in treaty law, its control of territory, international criminal law or customary international law. Part IV of the study synthesises the study’s findings to draw conclusions about the circumstances in which it may be justifiable for UN accountability mechanisms to hold armed groups responsible under human rights law.

Niklas Luhmann: Law, Justice, Society

Abstract: Introduction. Society and its Law. Paradox. Law's Other: Justice. Politics, Science, Economics, Religion and the Law. An Application: Environmental Law. Conclusion

From 'Direct Effect' to ‘Muted Dialogue': Recent Developments in the European Courts' Case Law on the WTO and Beyond

Abstract: Recent case law suggests that the European courts are rethinking their position in respect of international law. On the one hand, the European Court of Justice (ECJ) is extending its case law on the WTO, denying ‘direct effect’ to all of its provisions, to other major international treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS). In another recent judgment, the ECJ firmly said that it will not allow international agreements to jeopardize Europe's constitutional principles. These judgments might suggest that the ECJ is becoming more cautious, even skeptical toward international law. On the other hand, the WTO case law also illustrates that the ECJ has found more subtle ways than direct effect to give domestic law effect to international agreements. Examples are treaty-consistent interpretation, judicial dialogue with international tribunals, and transformation of international law into European legal principles. In this way, the ECJ is able to show respect to international law, which is indeed a core European value. At the same time, the ECJ maintains the power to act as a gatekeeper and resist those international legal norms that are considered inimical to the European legal order. On the whole the author welcomes this case law, albeit with some critical notes.

A European Legal Method? On European Private Law and Scientific Method

Abstract: This article examines the relationship between European private law and scientific method. It argues that a European legal method is a good idea. Not primarily because it will make European private law scholarship look more scientific, but because a debate on the method of a normative science necessarily has to be a debate on its normative assumptions. In other words, a debate on a European legal method will have much in common with the much desired debate on social justice in European law. Moreover, it submits that, at least after the adoption of the Common Frame of Reference by the European institutions, European contract law can be regarded as a developing multi-level system that can be studied from the inside. Finally, it concludes that the Europeanisation of private law is gradually blurring the dividing line between the internal and external perspectives, with their respective appropriate methods, in two mutually reinforcing ways. First, in the developing multi-level system it is unclear where the external borders of the system lie, in particular the borders between Community law and national law. Second, because of the less formal legal culture the (formerly) external perspectives, such as the economic perspective, have easier access and play an increasing role as policy considerations.

Human Dignity and the Foundations of International Law

Abstract: Introduction 1 Philosophical Problems for International Lawyers Conceptions of International Law in Space and Time Scepticism in the Philosophy of International Law Theory and Practice Conclusion 2 The Methodological Problem The Methodological Problem in Legal Science The Methodological Problem Is International Law Racist? The Ontological Problem Conceptual Analysis and Focal Analysis Conceptual Analysis Focal Analysis Conceptual Analysis, Focal Analysis and the Raw Data The Legal Scientist Conclusion 3 The Conceptual Analysis of International Law Hart's The Concept of Law as a Form of Conceptual Analysis Legal Positivism Hart's Concept of Law Hart's Non-ambitious Concept of Law Hart's Ambitious Concept of Law International Law as an Indeterminate Form of Law Usages and Conventions The Legal Scientist, the Ordinary Language User and the Legal Official Law as a Social Practice Theoretical Values Law as a Conventional Practice Paradigm Cases and the Internal Point of View Conclusion 4 Focal Analysis and Ideal-Types Purposivity and International Law Human Dignity and the Purpose of International Law Normative Positivism and International Law Focal Analysis and Ideal-Types Action and Axiology Ideal-Types The Ideal-Type and Collective and Institutionalised Social Practices General Concepts Weber on International Law Ideal-Types and Practical Reasonableness The Concept of International Law Relies upon the General Concept of Law Purpose and Meaning Practical Reasonableness and Ideal-Types Components of the Concept of International Law 5 Practical Reasonableness and Human Dignity The Idea of Human Dignity Human Dignity as Empowerment The Substantive Question Generic Features of Agency Distributive and Authoritative Questions The Authoritative Question Action and the Generic Features of Agency The Universalisation of Generic Rights The Distributive Question The Concept of International Law Dignity in the Kingdom of Ends From the Kingdom of Ends to Positive Law Conclusion 6 The Logic of the Autonomy Thesis The Autonomy Thesis Structure of the Autonomy Thesis Hobbes' Version of the Autonomy Thesis Kant's Version of the Autonomy Thesis Oppenheim's Version of the Autonomy Thesis Weil's Version of the Autonomy Thesis Failure of the Autonomy Thesis Adjudication and Function Legitimacy as a General Condition for the Success of the Autonomy Thesis The Autonomy Thesis and International Law Public Practical Reasons Practical Reasonableness and the Law Conclusion 7 Law as a General Concept The Bare-Autonomy Thesis and the Integrated-Autonomy Thesis Moral Reasoning and Law Ideal and Non-ideal Theory Justification of the Autonomy Thesis Immorality of the State of Nature Law as a Community Governed by an Omnilateral Will Kant's Justification for Law Enforcement Justification of the Integrated-Autonomy Thesis Law Constitutes our Freedom from Dependency Rousseau's Concept of Law The General Concept of Law Conclusion 8 The Foundations of the International Legal Order A Justification for International Law Civil Incorporation and the Sovereign State The State and Civil Incorporation Sovereignty and Collateral Moral Rights The State and Agency International Legal Order Kant's 'State of War' Why is the State of War Not-rightful? The Integrated-Autonomy Thesis and the Sovereignty of International Law Institutional Design International Legal Order as a Suprastate System International Legal Order as an Interstate System Interstate or Suprastate Institutional Design? Conclusion Lauterpacht and the Progressive Interpretation of International Law Unanswered Questions 9 The Discontinuity Thesis Alternatives to International Legal Order Sovereign States are Not Similar, in Relevant Ways, to Human Agents A Rejection of the Universal State, Not International Legal Order The Sovereign State Cannot be Considered an Agent Transgovernmental Law Instead of International Law? Rejection of International Legal Order Sovereign States are Not Similar, in Relevant Ways, to Human Beings Prudence and International Legal Order The Environment in which Sovereign States Find Themselves is Not Similar in Relevant Ways to the Environment in which Human Beings Find Themselves Are International Relations Not Unreasonable? Approximations to International Law Surrogates, Analogues and Approximations The Possibility of Perpetual Peace Conclusion 10 International Legal Order in Ideal and Non-ideal Theory Ideal Theory Norm-Creation Custom Interpretation Enforcement Failure of Interstate Design for Ideal Theory Non-Ideal Theory Juridical and Moral Concepts of the State Institutional Architecture and Norm-Creation Enforcement Self-Defence The Concept of International Law and the Role of the International Lawyer Conclusion Bibliography Index

Strengthening the Rule of Law, But Fragmenting International Law: The Kadi Decision of the ECJ from the Perspective of Human Rights

Abstract: The article analyses the ECJ’s decision in the appeals of Kadi and Al Barakaat. It first considers its importance for the constitutionalisation of the EU legal order. It argues that the judgment is significant because the ECJ asserts a new hierarchy within the EC legal order between economic freedoms and wider 'constitutional principles' and because it confirms that a Community based on the rule of law has practical significance. A second line of analysis concerns the repercussions of the judgment on the international legal order. On the one hand the article considers that a Solange-type redefinition of the relationship between the international and the EU legal order is possible, which might provide impetus for the development of human rights protection in international law. On the other hand, it raises also the question whether a human rights friendly and rule-of-law based result could have been achieved by a reasoning that is less antagonistic towards international law because fragmentation of international law might not always increase accountability over the long-term.

Law and Religious Pluralism in Canada

Abstract: Introduction: Law and Religious Pluralism in Canada / Richard Moon 1 View from the Succah: Religion and Neighbourly Relations / Shauna Van Praagh 2 Clashes of Principle and the Possibility of Dialogue: A Case Study of Same-Sex Marriage in the United Church in Canada / Jennifer Nedelsky and Roger Hutchinson 3 Associational Rights, Religion, and the Charter / David Schneiderman 4 The Canadian Conception of Equal Religious Citizenship / Bruce Ryder 5 Living by Different Law: Legal Pluralism, Freedom of Religion, and Illiberal Religious Groups / Alvin Esau 6 In the (Canadian) Shadow of Islamic Law: Translating Mahr as a Bargaining Endowment / Pascale Fournier 7 Living Law on a Living Earth: Aboriginal Religion, Law, and the Constitution / John Borrows 8 Defining Religion: The Promise and the Peril of Legal Interpretation / Lori G. Beaman 9 Government Support for Religious Practice / Richard Moon 10 Ontario's Sharia Law Debate: Law and Politics under the Charter / Lorraine E. Weinrib 11 Law's Religion: Rendering Culture / Benjamin L. Berger Index

A Critical Introduction to European Law

Abstract: Written by one of the leading academics specialising in European law and legal theory, A Critical Introduction to European Law explains the history and institutional framework of European Union law to students and scholars. Through the inclusion of commentaries on successive drafts of the Constitutional and Lisbon treaties, and discussion of recent developments such as the Turkish application, this third edition explores the evolving role of the EU in international and global politics. A consciously interdisciplinary approach, which draws on a variety of materials from political and legal thought, social theory, economic analysis, literature, history and cultural studies, is deployed to make the present state of Union law comprehensible.• Introduces the new student to the institutional structure of and prevailing philosophy behind the European Union • Explores crucial developments such as the Lisbon Treaty which have fundamentally changed attitudes to the European project • Draws on material from across the social sciences, such as politics and economics, to give a truly comprehensive overview

Thin Rule of Law of Un-Rule of Law in Myanmar?

Abstract: T he government of Myanmar has responded to worldwide dismay over the May 2009 criminal trial of democracy icon Daw Aung San Suu Kyi for allegedly violating the terms of her house arrest by characterizing it as a simple and unavoidable matter of law. State-run media outlets have rebutted arguments that the charges are baseless, erroneous and politically motivated. The Ministry of Foreign Affairs responded to criticism from the United Nations Security Council by saying that the case would “not have any political impact” and that it was being “considered and carried out as the task [sic] relating to the rule of law.” The government’s recourse to the rule of law in justifying the case, which is aimed at keeping the party leader under lock and key ahead of a planned general election in 2010, is not surprising. Like coup-makers around the world, the army in Myanmar predicated its 1988 takeover on maintenance of the rule of law. One general after the next has stressed the rule of law as a prerequisite for Myanmar becoming modern and developed. The regime has joined the nine other member states of the Association of Southeast Asian Nations in signing a regional charter that includes among its purposes and principles the enhancement of and adherence to the rule of law. Myanmar’s offi cialdom acknowledges the rhetorical force of the rule of law at least as much as its counterparts elsewhere, and like others, uses it for a variety of ulterior purposes. International lawyer Hilary Charlesworth has remarked that the rule of law has “a worthy resonance that no one can plausibly reject and yet it is malleable enough to accommodate many types of legal system.” This worthy resonance is problematic, because it encourages authoritarian regimes of

Contemporary International Law: An 'Empire of Law' or the 'Law of Empire'

Abstract: My topic is the relationship between modern international economic law and empire. At the outset, I face a challenge: many historians and international lawyers think there is no connection between the two. To serious scholars of empire, the two phenomena simply do not overlap. Empire, derived from the Latin “imperium,” is absolute rule of the sort deployed by the Roman consul. It implies power to command; in the Roman Empire, the power to control non-Romans. Empire in the ancient sense entails rule over others. An imperium rules “extensive, far-flung territories” (namely the periphery) beyond the metropole. It acknowledges no overlord or rival for power vis-à-vis the imperial center. In ancient usage, an imperium aspired to universality. Its selfunderstanding was all-encompassing, a world unto itself. An empire was a harmonious, autonomous cosmos confronted otherwise only by chaos. Those outside its domain remained uncivilized savages to the extent they did not integrate. As this suggests, a true “empire” did not share power with others. Since those outside the imperium were considered “barbarians,” to be brought under imperial rule by conquest was thought, as in the ancient

History of the Common Law: The Development of Anglo-American Legal Institutions

Abstract: This introductory text explores the historical origins of the main legal institutions that came to characterize the Anglo-American legal tradition, and to distinguish it from European legal systems. The book contains both text and extracts from historical sources and literature. The book is published in color, and contains over 250 illustrations, many in color, including medieval illuminated manuscripts, paintings, books and manuscripts, caricatures, and photographs. Two great themes dominate the book: (1) the origins, development, and pervasive influence of the jury system and judge/jury relations across eight centuries of Anglo-American civil and criminal justice; and (2) the law/equity division, from the emergence of the Court of Chancery in the fourteenth century down through equity's conquest of common law in the Federal Rules of Civil Procedure. The chapters on criminal justice explore the history of pretrial investigation, policing, trial, and sentencing, as well as the movement in modern times to nonjury resolution through plea bargaining. Considerable attention is devoted to distinctively American developments, such as the elective bench, and the influence of race relations on the law of criminal procedure. Other major subjects of this book include the development of the legal profession, from the serjeants, barristers, and attorneys of medieval times down to the transnational megafirms of twenty-first century practice; the literature of the law, especially law reports and treatises, from the Year Books and Bracton down to the American state reports and today's electronic services; and legal education, from the founding of the Inns of Court to the emergence and growth of university law schools in the United States. History of the Common Law offers: dynamic teaching materials that include primary sources, scholarship, summaries, notes, and questions judiciously selected and edited sources over 250 illustrations--many in full color "Living Law "units that connect legal-historical developments to modern law an illustrated timeline that highlights key dates a comprehensive Teacher's Manual, with suggestions for using the book in a two- or three-credit course Vivid writing, engaging source materials, and lavish illustrations breathe life into nearly 1,000 years of Anglo-American legal history. Concise summaries, manageable extracts, clear organization, and a detailed Teacher's Manual consistently support your teaching. *Teacher's Manuals are a professional courtesy offered to professors only. For more information or to request a copy, please contact Aspen Publishers at 800-950-5259 or legaledu@wolterskluwer.com.

The recognition of religion within the constitutional and political order of the European Union

Abstract: This article analyses the recourse to religion as a source of law in the legal and political order of the European Union. It demonstrates that the legitimacy of religious input into law is recognised institutionally, symbolically and substantively. However, religious influence within the Union’s public order must accommodate cultural and humanist influences that can serve to limit attempts to reflect religious teaching in law and which are particularly restrictive of the influence of “outsider” faiths whose demands cannot be routed through culture and those faiths with extensive political ambitions. Thus, the Union’s approach is characterised by a complex and shifting balance between religious, cultural and humanist influences which is struck in a pluralist context that attempts to reconcile the differing balances between such influences in individual Member States with the need to maintain the open and sufficiently religiously neutral common European ethical framework necessary for the functioning of the Union as a polity.

Intellectual Property Law: Text, Cases, and Materials

Abstract: 1. An introduction to intellectual property 2. Copyright I: History, justifications, sources of law and subsistence 3. Copyright II: Authorship, ownership, exploitation and duration 4. Copyright III: Moral rights economic rights, infringement, exceptions and related rights 5. Passing off 6. Trade Marks I: Justifications, registration, and absolute grounds for refusal of registration 7. Trade Marks II: The relative grounds for refusal of registration and infringement 8. Trade Marks III: Defences, the loss of a trade mark and exhaustion of rights 9. Breach of confidence 10. Privacy, personality and publicity 11. Patents I: Justifications, registration, patentable subject matter and industrial application 12. Patents II: Novelty, inventive step, sufficiency and support 13. Patents III: Infringement, exceptions and entitlement 14. Industrial designs 15. Intellectual property in action

Legal Systems and Variance in the Design of Commitments to the International Court of Justice

Abstract: This paper explores the relationship between domestic legal systems and the design of commitments to the International Court of Justice (ICJ). Empirical analyses demonstrate that civil law states are more willing to recognize the compulsory and compromissory jurisdiction of the World Court than common law or Islamic law states. Common law states place the highest number of reservations on their optional clause declarations, with the majority of those restrictions relating to specific areas of international law. Civil law states typically embed compromissory clauses in multilateral treaties, while common and Islamic law states prefer recognition of the ICJ's jurisdiction through bilateral treaties.

Facing the limits of the law

Abstract: The Limits of the Law.- Private Law and the Limits of Legal Dogmatics.- The Limits of the Law of Obligations.- Labour Law and the Limits of Dogmatic Legal Thinking.- The Limits of Consumer Law in Europe.- The Limits of Legality in the Criminal Law.- Corporate Wrongdoing and the Limits of the Criminal Law.- Regulating Prison Life: A Case Study of the Inmate Disciplinary System.- Criminal Law, Victims, and the Limits of Therapeutic Consequentialism.- Restorative Justice, Freedom, and the Limits of the Law.- Rebuilding Trust in the Former Yugoslavia: Overcoming the Limits of the Formal Justice System.- Legitimacy in the European Union and the Limits of the Law.- The Limits of the Law and the Development of the EU.- The Limits of Substantive International Economic Law: In Support of Reasonable Extraterritorial Jurisdiction.- When Law Meets Power: The Limits of Public International Law and the Recourse to Military Force.- Is the Rule of Law a Limit on Popular Sovereignty?.- Constitutional Ideals, National Identity, and the Limits of the Law.- Privacy Rights as Human Rights: No Limits?.- The Limits of the International Petition Right for Individuals: A Case Study of the ECtHR.- The Limits of Human Rights Law in Human Development.- Limits of Human Rights Protection from the Perspective of Legal Anthropology.- Functions and Limits of Patent Law.- Technology and the End of Law.- Darknets and the Future of Freedom of Expression in the Information Society.- Facing the Limits of the Law (Conclusion).

Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View

Abstract: International investment law creates an international level of review for (illegal) national regulations and laws and the conduct of administrative entities for foreign investors. It is state liability law for foreign investors. In the municipal legal orders, the law of available remedies against the state for injured right holders forms part of administrative and oftentimes constitutional law. In spite of the similarities of factual circumstances, the legal environment for dealing with national investors or citizens and the one for foreign investors varies considerably. Whereas in national law, a right holder needs to take all (usual administrative and judicial) steps to have the illegality of an act reviewed, in investment law, the investor often has immediate access to courts without the exhaustion of local remedies and may immediately claim damages. This difference justifies a functional comparison of national state liability regimes with international investment law. Of special interest are the circumstances under which legal order refers a private (legal) person to primary remedies or secondary remedies. In this article, the remedies in international investment law and the remedies for similarly situated cases in some municipal legal orders are compared. By this comparison, fundamental differences between international investment law and national state liability law in how to deal with state measures interfering with private rights or entitlements are highlighted. To summarize upfront: Whereas municipal legal orders tend to be reluctant to grant pecuniary damages and require the use of primary remedies against the (illegal) act per se, international investment law most heavily relies on secondary remedies. Why is this so? Why does an investor not need to use at least effective remedies in the host state in order for a claim to damages to be “ripe”? What are the rationales discussed for the different remedies found in national state liability law and in investment law? And do they have a rational justification in general and depending on the case in specific circumstances? The paper proposes possible interpretations of investment treaties to have mix of national and international remedies.

The Recognition of Religion within the Constitutional and Political Order of the European Union

Abstract: This article analyses the recourse to religion as a source of law in the legal and political order of the European Union. It demonstrates that the legitimacy of religious input into law is recognised institutionally, symbolically and substantively. However, religious influence within the Union’s public order must accommodate cultural and humanist influences that can serve to limit attempts to reflect religious teaching in law and which are particularly restrictive of the influence of “outsider” faiths whose demands cannot be routed through culture and those faiths with extensive political ambitions. Thus, the Union’s approach is characterised by a complex and shifting balance between religious, cultural and humanist influences which is struck in a pluralist context that attempts to reconcile the differing balances between such influences in individual Member States with the need to maintain the open and sufficiently religiously neutral common European ethical framework necessary for the functioning of the Union as a polity.

New Developments in the International Law of Piracy

Abstract: The law of piracy can be regarded as the oldest branch of international law, particularly the law of the sea. While the basic legal stipulations in international law as embodied in the 1982 UN Convention on the Law of the Sea remained unchanged for a long time, there are some new developments relating to the change of the law of piracy associated with the resurgence of contemporary piracy in the 1990s and the so-called “anti-terror war” led by the United States after the September 11 event. This paper will address three aspects: the definition of piracy; new international legislation concerning piracy; and recent State practice, all contributing to the development of the international law of piracy.

International Soft Law, Human Rights and Non-state Actors: Towards the Accountability of Transnational Corporations?

Abstract: During this age of globalisation, the law is characterised by an ever diminishing hierarchical framework, with an increasing role played by non-state actors. Such features are also pertinent for the international enforceability of human rights. With respect to human rights, TNCs seem to be given broadening obligations, which approach the borderline between ethics and law. The impact of soft law in this context is also relevant. This paper aims to assess whether, and to what extent, this trend could be a proper path to enforce the legal accountability of transnational corporations for human rights. It will be argued that the interplay between law and ethics should be assessed differently depending on which kind of correlative duty is at stake. With regard to negative duties, soft law tools concerning TNCs’ conduct may weaken the impact of hard law. By contrast, when positive duties are concerned, insofar as the horizontal effect of rights cannot be assumed, soft law turns out to be much more useful.