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24652 results in Public International Law

Page 485 of 1233

  • Towards a Principled Justification for the Mixed Composition of Hybrid International Criminal Tribunals

  • HARRY HOBBS
  • Journal:
    Leiden Journal of International Law / Volume 30 / Issue 1 / March 2017
    Published online by Cambridge University Press:
    21 October 2016, pp. 177-197
    Print publication:
    March 2017

  • The justification for a majority of international judges sitting on hybrid international criminal tribunals is tremendously undertheorized. At present, policymakers must rely on base pragmatic considerations that allege that local judges are either too incapable or too corrupt. This may or may not be true. It is, however, certainly unattractive and inadequate as an argument. In this article, I sketch out a principled theoretical argument defending internationalization of hybrid tribunals. Drawing on debates in municipal jurisdictions on the principle of fair reflection, my principled justification centres on institutional and sociological legitimacy. As international crimes strike at two societies – the local and the global – hybrid tribunals should be composed of both international and local judges. In principle, the severity of international crimes dictates that international judges should predominate. However, peculiar contextual factors may suggest moderating the principle of fair reflection in appropriate circumstances.

  • Use of Force against Non-state Actors and the Circumstance Precluding Wrongfulness of Self-Defence

  • FEDERICA I. PADDEU
  • Journal:
    Leiden Journal of International Law / Volume 30 / Issue 1 / March 2017
    Published online by Cambridge University Press:
    19 October 2016, pp. 93-115
    Print publication:
    March 2017

  • The right of self-defence against non-state actors is increasingly invoked and accepted in the practice of states. However, the recognition of this right must overcome a fundamental obstacle: that of explaining why the rights of the host state, in particular its right of territorial sovereignty, is not infringed by the self-defensive force used within its territory. In practice, states invoking self-defence against non-state actors rely on the involvement of the host state with those actors to justify the use of force in that state's territory. It is not clear, from a legal standpoint, how to rationalize the fact of involvement as a form of legal justification. For some, involvement amounts to attribution. For others, involvement is a form of complicity. For others still, involvement may entail a breach of the host state's due diligence obligation to protect the rights of other states in its territory. All of these solutions are deficient in some way, and have failed to receive general endorsement. This article considers whether there may be a different, as yet neglected, solution: self-defence as a circumstance precluding wrongfulness. The article shows that this is not a perfect solution either, since positive law remains uncertain on this point. Nevertheless, it is a solution that may provide a better normative framework for the development of the law of self-defence against non-state actors.

  • Climate Change and Atoll Island States: Pursuing a ‘Family Resemblance’ Account of Statehood

  • SUSANNAH WILLCOX
  • Journal:
    Leiden Journal of International Law / Volume 30 / Issue 1 / March 2017
    Published online by Cambridge University Press:
    17 October 2016, pp. 117-136
    Print publication:
    March 2017

  • ‘Climate change inundation’ – the process whereby climate change-related impacts like rising sea levels, higher storm surges, and changing rainfall patterns interact with and exacerbate existing vulnerabilities like poverty, isolation, resource scarcity, and inadequate infrastructure – presents a unique challenge to the territorial, legal, and political infrastructure of low-lying coral atoll island states. This article uses the example of climate change inundation to illustrate some of the shortcomings of the mainstream ‘minimum threshold’ account of statehood. It then proposes an alternative account of the criteria of statehood as a set of overlapping similarities or relationships between state-like entities, drawing on Wittgenstein's concept of ‘family resemblances’. Although problematic in some respects, this family resemblance account provides a broader conceptual space for assessing the merits of alternative forms of statehood.

  • The Complementarity Regime of the International Criminal Court in Practice: Is it Truly Serving the Purpose? Some Lessons from Libya

  • NIDAL NABIL JURDI
  • Journal:
    Leiden Journal of International Law / Volume 30 / Issue 1 / March 2017
    Published online by Cambridge University Press:
    17 October 2016, pp. 199-220
    Print publication:
    March 2017

  • The interplay between the International Criminal Court (ICC) and domestic jurisdictions under the complementarity regime has unveiled statutory and policy limitations. These loopholes became vivid when the ICC faced new complex situations that were not initially envisaged by the drafters of the Rome Statute. On the practical side, the Libyan situation revealed setbacks and shortages in the policy(ies) adopted by the ICC. The first of these setbacks is the apparent lack of a coherent strategy on positive complementarity as invoked by (some) organs of the Court. The second aspect is the Court's adoption of a restrictive interpretation of the constituencies of the complementarity regime, making it extremely difficult even for some willing and able states to exercise their primary duty to prosecute core international crimes.

    The unfortunate loose interpretation of ‘unavailability’ that the ICC has developed has led to inaccurate interpretations of the complementarity mechanism in certain situations, such as Libya. Furthermore, the fair trial standards within the admissibility regime should not be exaggerated, but rather invoked to determine whether the state has a bona fide intention to investigate and prosecute these crimes. Contrary to some writers’ interpretation, this is an objective test of intention, not one of relativity or specific result.

    The ICC practice has shown a patchy approach that lacks a consistent and clear vision of its relation with domestic jurisdictions. While the ICC has not missed every opportunity to hail its commitment to positive complementarity, the reality is that the Court seems keen on understanding its success through conducting more international prosecutions.

Beyond Human Rights
  • The Legal Status of the Individual in International Law
  • Anne Peters
  • Translated by Jonathan Huston
  • Published online:
    13 October 2016
    Print publication:
    27 October 2016
  • A paradigm change is occurring, in the course of which human beings are becoming the primary international legal persons. In numerous areas of public international law, substantive rights and obligations of individuals arguably flow directly from international law. The novel legal status of humans in international law is now captured with a concept borrowed from constitutional doctrine: international rights of the person, as opposed to international law protecting persons. Combining doctrinal analysis with current practice, this book is the most comprehensive contemporary analysis of the legal status of the individual. Beyond Human Rights, previously published in German and now revised by the author in this English edition, not only deals with the individual in international humanitarian law, international criminal law and international investment law, but it also covers fields such as consular law, environmental law, protection of individuals against acts of violence and natural disasters, refugee law and labour law.

  • 2 - Bilateral, Regional and Multilateral Investment Agreements and Investment Contracts

  • David Collins, City University London
  • Book:
    An Introduction to International Investment Law
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 33-64

  • Summary

    Introduction

    Today treaties are the primary means through which investors seek to protect their rights with respect to foreign investment against host states. The use of treaties to protect foreign investment represents a seismic shift away from the use of customary international law which had historically been the chief means of protecting aliens who engaged in commerce. More concrete than customary international law and the other sources of international law like general principles, international investment agreements (IIAs) provide reasonably clear standards of protection for foreign investors which can be interpreted and applied by international tribunals. Perhaps most importantly, treaties can be tailored to suit the individual needs of the states concerned, according useful flexibility to the pursuit of economic growth.

    This chapter will outline the nature of the chief treaty-based means of regulating foreign investment under international law – the bilateral investment treaty – explaining its purpose in offsetting the risks associated with FDI and perhaps more fundamentally, its stated aim to achieve mutual economic advancement between treaty parties. Recognizing that much treaty negotiation is now done at the regional level, this chapter will then consider some of the most important multi-party or regional treaties with investment disciplines, which tend to offer protection and in some cases liberalization, for foreign investment in conjunction with other types of economic activity, most notably trade. This will involve a discussion of the North American Free Trade Agreement (NAFTA), the Energy Charter Treaty (ECT), the Association of South East Asian Nations (ASEAN) as well as modern instruments such as the Transatlantic Trade and Investment Partnership (TTIP) and the Trans Pacific Partnership (TPP). This chapter will proceed to discuss the key global treaties (and associated institutions) that are relevant to international investment, including the World Bank agreements (specifically the Multilateral Investment Guarantee Agency (MIGA), the International Finance Corporation (IFC) and ICSID, and relevant WTO Agreements: the General Agreement on Trade in Services (GATS), the Trade-Related Investment Measures (TRIMS) and the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). Shifting the focus away from binding rules to guidelines, some of the most important regimes of guidance for states and firms covering international investment that have been promulgated by international organizations such as the OECD, notably its liberalization codes as well as various aspirational ‘soft law’ instruments of the UN, will be discussed.

International Law Documents
  • Edited by Jan Klabbers
  • Published online:
    28 May 2018
    Print publication:
    06 October 2016
  • This concise collection of the most important international law instruments is an essential resource for all students of international law. In addition to standard instruments such as the UN Charter, human rights documents and the UN Convention on the Law of the Sea, the volume also features topics not usually included in similar collections, such as international labour instruments, the work of the G20, and bilateral and unilateral instruments. Taking a global approach, the collection incorporates American, African and Asian instruments alongside UN, EU and other international documents, to reflect the diverse nature of international law courses. The two-colour design aids student navigation through the materials, and lengthier documents such as UNCLOS and the ICC statute are presented in shortened form, making the volume concise and clear. An ideal companion for students of international law, the book is also valuable for students of international human rights law, international relations, global governance and international politics.

  • 1 - Introduction to Foreign Direct Investment: History, Trends and Rationales

  • David Collins, City University London
  • Book:
    An Introduction to International Investment Law
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 1-32

  • Summary

    International Investment Law

    International investment law is best described as a field of public international law which deals with the laws governing the commercial activities of multinational enterprises that are undertaken in foreign states. This occurs when a business or firm decides to open a branch of operations overseas, such as a factory or a mine, and in so doing it may come into conflict with that host state's laws. These may control the nature or extent of the economic activities the firm is allowed to pursue, such as licensing requirements, labour or environmental standards. While this situation may appear to be a matter for resolution by application of domestic laws of the host state through its courts, increasingly recourse is given to international law and international tribunals for answers. International investment law is a species of public international law in the sense that it comprises legal commitments made by sovereign states at the international level as captured by the international investment agreements. While often overlooked, it also has private law elements because the rights (and to a lesser extent obligations) of firms are in some cases formulated by investment contracts between firms and the states in which they operate. In this latter sense, international investment law can be viewed as a field of transnational contract law, governed both by domestic legal systems and the rules of international law.

    The law of foreign investment is one of the oldest branches of international law. But it remained relatively undeveloped until the latter part of the twentieth century, growing in-step with globalization, meaning the intense interrelation of markets as well as the mobility of people and capital around the world. Prior to the 1990s there were few treaties governing international investment and the resolution of disputes between investors and host states was mostly informal, consisting for the most part of diplomatic pressure, often backed up by the threat of force. Yet within a relatively short period of time this area of law witnessed a phenomenal growth to become one of the most dynamic and intensively studied spheres of international law. It now comprises many thousands of treaties and highly formalized dispute settlement procedures which have resulted in hundreds of cases brought by expert practitioners and a growing body of specialized jurisprudence.

  • Part V - Substantive Issues

  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 389-389

  • Summary

    52 Treaty on the Non-proliferation of Nuclear Weapons 390

    53 Geneva Conventions (first three common articles) 395

    54 Rome State of the International Criminal Court 397

    55 United Nations Convention on the Law of the Sea (excerpts) 417

    56 Antarctic Treaty 476

    57 Treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies 482

    58 Rio Declaration on Environment and Development 487

    59 Kyoto Protocol to the United Nations Framework Convention on Climate Change 491

    60 Marrakesh Agreement establishing the World Trade Organization 509

    61 General Agreement on Tariffs and Trade (1947, excerpts) 519

    62 Understanding on Rules and Procedures Governing the Settlement of Disputes (Annex 2 of the WTO Agreement) 527

  • 20 - ECHR, Fifteenth Protocol

  • from Part II - Protecting the Individual
  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 167-169

  • Summary

    ETS NO. 213

    Concluded: 24 June 2013

    Not in force

    FINAL AND TRANSITIONAL PROVISIONS 168

    The member States of the Council of Europe and the other High Contracting Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”), signatory hereto,

    Having regard to the declaration adopted at the High Level Conference on the Future of the European Court of Human Rights, held in Brighton on 19 and 20 April 2012, as well as the declarations adopted at the conferences held in Interlaken on 18 and 19 February 2010 and İzmir on 26 and 27 April 2011;

    Having regard to Opinion No. 283 (2013) adopted by the Parliamentary Assembly of the Council of Europe on 26 April 2013;

    Considering the need to ensure that the European Court of Human Rights (hereinafter referred to as “the Court”) can continue to play its pre-eminent role in protecting human rights in Europe,

    Have agreed as follows:

    Article 1

    At the end of the preamble to the Convention, a new recital shall be added, which shall read as follows:

    “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”.

    Article 2

    1. In Article 21 of the Convention, a new paragraph 2 shall be inserted, which shall read as follows:

    “Candidates shall be less than 65 years of age at the date by which the list of three candidates has been requested by the Parliamentary Assembly, further to Article 22.”

    2. Paragraphs 2 and 3 of Article 21 of the Convention shall become paragraphs 3 and 4 of Article 21 respectively.

    3. Paragraph 2 of Article 23 of the Convention shall be deleted. Paragraphs 3 and 4 of Article 23 shall become paragraphs 2 and 3 of Article 23 respectively.

  • 10 - Non-Precluded Measures: Essential Security, Economic Stability and the Defence of Necessity

  • David Collins, City University London
  • Book:
    An Introduction to International Investment Law
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 284-306

  • Summary

    Introduction

    The public interest issues discussed in the previous chapter are without question important; they would not appear as express exceptions in IIAs were it not so. Clearly there are some issues which are, in certain circumstances, more important than the protection of foreign investors' commercial interests. But there are certain categories of exceptions that are so important and which are therefore deserving of special treatment by investment tribunals, as well as dedicated discussion in this book. This chapter will accordingly discuss two critical and related varieties of measures which appear as distinct exceptions in many IIAs: essential security and economic emergency, which are sometimes dealt with together under the heading of non-precluded measures. Non-precluded means simply that the obligations contained in the treaty should not be construed to derogate from the state's right to enact measures in these spheres. This chapter will also look at the related concept of necessity under public international law, discussing how this defence was used successfully and unsuccessfully in a series of investment disputes involving Argentina.

    The substance of these two key areas of regulatory activity is captured simply by their seriousness in terms of their impact on the functioning of society. While conserving the environment and culture are certainly important, in a relative sense they are far less so than the need to preserve the integrity of society itself. This is not to say that an environmental emergency (or a cultural one for that matter) could never arise, but commonly speaking we would not normally view these issues as ones of urgency or where the failure to take adequate steps could be a matter of life or death. Essential security and economic emergency measures represent responses to an actual or potential crisis, which by definition are situations which arise only exceptionally and entail the gravest of consequences. Because of their severity these types of exceptions are handled somewhat differently in IIAs and under customary international law.

    Essential Security

    Perhaps the most serious of all risks to organized society are those relating to its security from attack by outsiders. The manner in which this is addressed by international investment law will be explored below.

  • 2 - Charter of the United Nations

  • from Part I - General Instruments
  • Edited by Jan Klabbers, University of Helsinki
  • Book:
    International Law Documents
    Published online:
    28 May 2018
    Print publication:
    06 October 2016, pp 5-28

  • Summary

    892 UNTS 119

    Concluded: 26 June 1945

    In force: 24 October 1945

    CHAPTER I PURPOSES AND PRINCIPLES 6

    CHAPTER II MEMBERSHIP 7

    CHAPTER III ORGANS 8

    CHAPTER IV THE GENERAL ASSEMBLY 8

  • COMPOSITION 8

  • FUNCTIONS AND POWERS 8

  • VOTING 10

  • PROCEDURE 10

    • CHAPTER V THE SECURITY COUNCIL 11

  • COMPOSITION 11

  • FUNCTIONS AND POWERS 11

  • VOTING 12

  • PROCEDURE 12

    • CHAPTER VI PACIFIC SETTLEMENT OF DISPUTES 13

    CHAPTER VII ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION 14

    CHAPTER VIII REGIONAL ARRANGEMENTS 16

    CHAPTER IX INTERNATIONAL ECONOMIC AND SOCIAL CO-OPERATION 17

    CHAPTER X THE ECONOMIC AND SOCIAL COUNCIL 18

  • COMPOSITION 18

  • FUNCTIONS AND POWERS 18

  • VOTING 19

  • PROCEDURE 20

    • CHAPTER XI DECLARATION REGARDING NON-SELF-GOVERNING TERRITORIES 20

    CHAPTER XII INTERNATIONAL TRUSTEESHIP SYSTEM 21

    CHAPTER XIII THE TRUSTEESHIP COUNCIL 23

  • COMPOSITION 23

  • FUNCTIONS AND POWERS 24

  • VOTING 24

  • PROCEDURE 24

    • CHAPTER XIV THE INTERNATIONAL COURT OF JUSTICE 24

    CHAPTER XV THE SECRETARIAT 25

    CHAPTER XVI MISCELLANEOUS PROVISIONS 26

    CHAPTER XVII TRANSITIONAL SECURITY ARRANGEMENTS 27

    CHAPTER XVIII AMENDMENTS 27

    CHAPTER XIX RATIFICATION AND SIGNATURE 28

    We the peoples of the United Nations

    Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom,

    And for these ends to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples,

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