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Much has been written about the relationship of the WTO with human rights. This chapter reexamines the role of human rights in the WTO, focusing on the dispute settlement function of the organisation. It first discribes the dispute settlement mechanism of the WTO and its role in international dispute resolution. Then it sets out the normative framework of the mechanism, pointing out that while WTO dispute settlement does not have jurisdiction over complaints of human rights violations and human rights are often assumed not to be part of its applicable law, except for jus cogens, it can use universal human rights norms in the interpretation of WTO law under the VCLT. An analysis of the practice of WTO dispute settlement shows, however, that references to human rights in substantive matters are extremely rare. This does not imply that the system is blind to the values defended by human rights, however. The system has preferred to take these considerations into account as value-based arguments in the application of WTO law itself. As to procedural law, the WTO imports human rights terminology, even though the mechanism is state to state only.
In international investment law, investor-claimants often have recourse to human rights case law in order to support a certain interpretation of investment protection standards, such as denial of justice and the prohibition on expropriation of private property without compensation. What is rarer, however, is that respondent States may invoke their human rights obligations in order to formulate a defence of their conduct towards a particular investor, or even to formulate a counterclaim. After briefly outlining investors’ reliance on human rights rules to support their claims, this chapter investigates the potential of invoking human rights norms by respondent States in order to persuade a tribunal that, first, it does not have jurisdiction; secondly, no investment protection standard has been violated; or, thirdly, damages ought to be calculated in a certain manner. Subsequently, three specific issues that may complicate the invocation of human rights norms in investor-State dispute settlement are examined: the difference between human rights obligations and objectives; State acquiescence or complicity to human rights violations; and human rights counterclaims.
This introductory chapter by the editor discusses the goals of the book, introduces the questions central to it as well as develops a methodological framework. It relates to existing scholarship on the impact of human rights law upon other branches of international law and on the fragmentation of international law. It outlines the methodology that was applied in working towards this volume by presenting a range of distinctions that provide conceptual tools for detecting and assessing the different ways how international non-human-rights courts may refer to human rights. These include categories of human rights, sources of human rights norms, and three contexts for their application, namely due process rights applied in the proceedings of the court in question, substantive human rights norms as applicable law or basis for subject-matter jurisdiction, and interpretive reliance on human rights through systemic integration. The chapter also relates to the legitimacy of international courts by showing that how international courts relate to human rights norms matters for factors of legitimacy.
In the concluding chapter, the editor engages in a comparative and theory-building exercise across the jurisdictions covered in the book. There are important differences between international non-human-rights courts as to the legal basis for their application of human rights norms. While due process rights of the parties appearing before it, and systemic integration, are available for all courts, there are marked differences in issues such as standing by individuals, the status of human rights norms as applicable substantive law or basis for jurisdiction, and the patterns concerning which categories of human rights have made their way into other international courts. There are also clear examples of ‘other’ courts widening the scope of justiciable human rights, for instance through applying economic, social and cultural rights, or the right to property, or collective rights of peoples beyond the practice of actual human rights courts. In their application of human rights norms, 'other' international courts have at least so far tended to do so reflecting more the trend of humanisation, rather than constitutionalisation, of international law.
So far, we have heard a lot about how private actors are trying to regulate the internet. Governments across the world have also been very active in trying to get internet companies to regulate what information their citizens can access and share online. The decentralized, resilient design of the internet makes government censorship much more difficult than in the mass media era, where it was much simpler to embed controls within the operations of a small number of major newspaper publishers and television and radio networks. Governments are adapting, though, and quickly becoming much more sophisticated in how they monitor and control the flow of information online.
Technology companies are the sheriffs of what used to be the wild west of the internet. In the 1990s, when the internet was young, the imagery of the western frontier really seemed like a good analogy. The internet seemed to radically decentralize power: no longer could massive publishers or broadcasters control the media; anyone could be a publisher and get their message out.1 The internet seemed inherently designed to preserve the freedom of individuals. It seemed impossible to enforce laws against the apparently anonymous masses of internet users distributed around the world. The commercial internet grew out of a military design that avoided single points of failure and was resilient against both nuclear attack and interference by hostile governments.2
In August 2017, several hundred white nationalists marched on the small university town of Charlottesville, Virginia. The rally turned tragic when one of the protesters rammed his car into a crowd of counterprotesters, killing 32-year-old Heather Heyer. The Washington Post characterized the protesters as “a meticulously organized, well-coordinated and heavily armed company of white nationalists.”1
Host states are waking up to the power of pleas based on contributory fault or investor misconduct in investment arbitrations. The host state may have flagrantly breached the applicable investment treaty, but it can effectively be saved if it can adduce evidence of the investor’s wrongdoing. ‘Saving’ might mean that the arbitral tribunal lacks jurisdiction, the investor’s claim is inadmissible, the host state’s liability is eliminated, or the remedies that the host state must make good on are substantially reduced. The question that this chapter tackles is: what is risky or wrongful conduct on the part of the investor relevant to jurisdiction, admissibility, liability, or remedies? The significance is not born out of an obsession for order, but a recognition that decisions on these questions have different legal consequences. To resolve the question, international investment law is conceived as a schematic through which the various pleas arising out of an investment dispute must navigate. In detailing this schematic, the proper scopes of jurisdiction, admissibility, liability, and remedies are clarified. What this reveals is that ‘defences’ are distinguishable from other types of rules and risky or wrongful conduct attributable to the investor is generally relevant to liability.
The existing international scope of English freezing injunctions in support of foreign proceedings is excessively claimant-friendly and inconsistent with the need for a level playing field in litigation. The English courts must reconsider the current boundaries of relief by taking into account an international systemic perspective of the purpose of private international law rules. This requires a multilateral and horizontal approach to the existence of jurisdiction rather than the unilateral and vertical approach that exists under the rules of jurisdiction of English national law. The traditional justifications for the availability of collateral freezing injunctions with respect to assets located abroad rest on a series of fundamental theoretical flaws. This article proposes a range of reforms with the aim of strengthening the equality of the parties and eliminating encroachment on the sovereignty of foreign States.
The following article considers the approach taken by the courts of the United States in claims concerning issues of state immunity and private international law with respect to the expropriation and restitution of cultural property, primarily in the context of Nazi Germany. It can be seen that the US courts have interpreted the provisions under the Foreign Sovereign Immunities Act so as to significantly widen the scope for individuals to bring claims against states and state entities in circumstances where the case, and the property concerned, has little or no connection with the jurisdiction and which at their core are domestic disputes.
This Article aims at highlighting theoretical and practical issues around the application of the general principle of proportionality in EU immigration. It focuses on the application procedure foreseen by the Single Permit Directive by proposing an argument that combines proportionality and procedural guarantees. This Article has two main objectives: First, it explains why and how the general principle of proportionality is applicable to first admission applications. In this context, the Single Permit Directive—adopted as an important piece of the emerging EU legal regime on immigration—will represent a common theme for our reflections and a timely example on the practical implications of the argument presented in this Article. Second, it explores an important dimension of the legal-philosophical relevance of proportionality as applied to immigration. This specific Article might be apprehended from the point of view of a larger debate on the meaning of discretion in immigration law. It connects to the field of immigration ethics, a field in which legal scholars should become more active. As will be shown, ethical and legal considerations on immigration should work closely together, thereby improving current regulations and their implementation.
The India-Pakistan relationship and its hold over Kashmir is often described by words such as deadlock, intractability, and stalemate; conveying a geopolitics of “stuckness.” Within conditions of postcolonial era colonialism, and at the intersection of constitutional law and literature, this article explores this stuckness as a jurisdictional crisis. A constitution first and foremost constitutes jurisdictions. Appropriation of land by delimiting the earth, marking out territories, enclosures, boundaries, and visible divisions is the necessary condition for the very possibility of law. How does the Indian constitution constitute the jurisdictional conditions of Kashmir? And how does one read for these jurisdictional conditions in literature? This article is more specifically interested in literary representations of jurisdictional crisis in the contemporary Kashmir novel. It argues that the constitutional politics and history that created the jurisdictional conditions of Kashmir produce a “performance of stuckness” in Kashmir literature.
Against the historical backdrop of the sinking of the Canadian rum-running schooner the I’m Alone by the US Coast Guard in 1929, this paper examines the re-crafting of maritime jurisdictional practices in the 2000s through the Canada-US Cross-Border Maritime Law Enforcement Program known as Shiprider. Thinking jurisdictionally and taking seriously the materiality of the water, we explore the significance of Shiprider’s patrols in the local context of Kaniatarowano’on:we (St. Lawrence River) which flows through Akwesasne Mohawk Territory, an indigenous border nation cleaved by the Canada-US international border where local communities contend with and continue to refuse imposed colonial settler boundaries.
On 9 April 2018, the Prosecutor of the International Criminal Court filed a request seeking the composition of a Pre-Trial Chamber, in order to decide whether the Court has territorial jurisdiction over the Rohingya deportation from Myanmar to Bangladesh as a crime against humanity. This filing is a first for the Court on at least two fronts; it is the first time the Prosecutor has asked the Court to interpret Article 12(2)(a) and apply qualified territoriality; it is also the first time the Prosecutor has asked for a ruling on jurisdiction under Article 19(3).
This study explores certain procedural questions emerging from this request, such as the Court’s authority to decide while its jurisdiction is ‘dormant’; the function of Article 19(3) within the Rome Statute’s overall system concerning jurisdictional determinations; issuing a decision on jurisdiction, while avoiding prejudice to subsequent proceedings and without rendering meaningless the right to challenge jurisdiction under Article 19(2) of the Statute. The article accepts that the request is a step in the right direction, as it signals the Prosecutor’s determination to investigate the Rohingya crisis. However, the manner and timing of its presentation give rise to plausible claims of incompatibility with the Court’s procedural framework. Arguably, the Court may well instruct the Prosecutor to assume the risk of wasting precious resources and proceed with further investigations, pending the final determination of the jurisdictional question at a later stage.
The article examines the court judgment in Pather and Another v Financial Services Board and Others  3 All SA 208 (GP) to explore the Enforcement Committee (EC)’s jurisdiction to settle market abuse cases in South Africa.
This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. It argues that the jurisprudence of the European Court for Human Rights, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court's current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.
A wave of interdisciplinary scholarship in the last two decades has managed to place empires at the center of the history of international law. This article surveys key insights resulting from this move and assesses remaining challenges. In explaining how the study of law in particular imperial locations can illuminate global legal transformations, the article identifies cross-cutting themes of articles in this special volume.
The protection of foreign investment by treaties often clashes with the State's sovereign right to investigate economic crimes committed by investors. This article examines the different approaches taken by tribunals to questions concerning admissibility and jurisdiction, applicable law, the standard of review, the burden and standard of proof and deference to actions taken by domestic courts and regulators related to economic crimes. It concludes that investors should not automatically be deprived of treaty protections and their access to investment arbitration blocked. The arbitration agreement, being autonomous from the main contract (or the relevant treaty), should, as a rule, remain valid even if the conduct of investors is tainted by economic crimes. The article calls on investment tribunals to reflect in their awards on the contributory fault of the parties when representatives of States and investors are both complicit in economic crimes. To achieve greater legal certainty and procedural efficiency, a new generation of investment treaties and the practice of investment tribunals should draw on not only applicable domestic law but also existing sources of international law concerning economic crimes or national best practice.