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The UN Security Council and International Law explores the legal powers, limits and potential of the United Nations Security Council, offering a broadly positive (and positivist) account of the Council's work in practice. This book aims to answer questions such as 'when are Council decisions binding and on whom?', 'what legal constraints exist on Council decision making?' and 'how far is the Council bound by international law?'. Defining the controlling legal rules and differentiating between what the Council can do, as opposed to what it should do as a matter of policy, this book offers both a tool for assessment of the Council as well as realistic solutions to address its deficiencies, and, most importantly, evaluates its potential for maintaining international peace and security, to the benefit of us all.
In 2000, the UN Security Council adopted the ground-breaking Resolution 1325 on Women, Peace and Security (WPS) placing women at the centre of the agenda, thanks to years of campaigning. The Resolution recognises the differential impact of armed conflict on women and men, draws attention to the 'inextricable links between gender equality and international peace and security' and stresses the 'important role of women in the prevention and resolution of conflicts and in peace-building'. But what exactly is the WPS agenda and what is its content? What are its implications for peace and for security? And what does it mean for international lawyers? Through the narratives of women's activism and of international law this book seeks to make the WPS agenda better known to international lawyers and to ask whether it is, or could become, an international legal regime that conforms and responds to the realities of women's lives.
Democracies and authoritarian regimes have different approaches to international law, grounded in their different forms of government. As the balance of power between democracies and non-democracies shifts, it will have consequences for international legal order. Human rights may face severe challenges in years ahead, but citizens of democratic countries may still benefit from international legal cooperation in other areas. Ranging across several continents, this volume surveys the state of democracy-enhancing international law, and provides ideas for a way forward in the face of rising authoritarianism.
The vitality or, alternatively, vitiation of the international arbitral process remains a pressing subject. The explosion of inter-State, investor-State, and international commercial arbitration in recent years magnifies the importance of the subject. This second edition combines the historical analysis of the first edition with a survey of the continued salience and contemporary developments for each of the three problems identified: (i) the severability of the arbitration agreement; (ii) denial of justice (and now other possible breaches of international law) by governmental negation of arbitration; and (iii) the authority of truncated international arbitral tribunals. The international arbitral process continues to be fortified against unilateral attempts to derail it and, to that end, this book will be a valuable guide for practitioners and scholars alike.
International law evolved to end and prevent armed conflict as much as for any other reason. Yet, the law against war appears weaker today than ever in its long history, evidenced by raging armed conflicts in which people are killed, injured, and forcibly displaced. The environment is devastated, and the planet impoverished. These consequences can be traced to the dominant ideology of realism. In 1946, Hersch Lauterpacht challenged that ideology by contrasting it with the idea of international law, composed of natural law, positive law, and process theory. The Art of Law in the International Community revives his vision, rebuilding the understanding of why international law binds, what its norms require, and how courts are the ideal substitutes for war. The secret to the renewal of international law lies in revitalizing the moral foundation of natural law through drawing on aesthetic philosophy and the arts.
This examination of the jurisdiction of international courts and the admissibility of cases before them analyses jurisdictional and admissibility rules in light of the roles assumed by international courts in international life and in light of the roles that jurisdictional and admissibility rules play in promoting the effectiveness and legitimacy of international courts. The theory pursued views jurisdiction as a form of delegation of power (the power to exercise judicial power and decide the law) and regards admissibility as a framework for deciding upon the propriety of exercising such power. On the basis of this theoretical framework, the author critically evaluates the exercise of judicial discretion in the existing case law of a variety of international courts, distinguishing between the category-based case selection implicit in jurisdictional rules and the case-by-case analysis and selection implicit in rules on admissibility.
Domestic lawyers are, above all, officers of the court. By contrast, the public international lawyer representing states before international tribunals is torn between loyalties to the state and loyalties to international law. As the stakes increase for the state concerned, the tension between these loyalties can become acute and lead to practices that would be condemned in developed national legal systems but have hitherto been ignored by international tribunals in international legal scholarship. They are the 'dirty stories' of international law. This detailed and contextually sensitive presentation of eight important cases before a variety of public international tribunals dissects some of the reasons for the resort to fraudulent evidence in international litigation and the profession's baffling reaction. Fraudulent evidence is resorted to out of greed, moral mediocrity or inherent dishonesty. In public international litigation, by contrast, the reasons are often more complex, with roots in the dynamics of international politics.
Investment claims have exposed the vague nature of the standards by which arbitral tribunals are expected to adjudicate them and the policy reasons which explicitly or implicitly have an influence. The ad hoc nature of the tribunals and the decisions reached on various controversial issues have brought to the fore the issue of consistency. Andrés Rigo Sureda's Hersch Lauterpacht Memorial Lecture examines how arbitral discretion is exercised in the face of uncertainty of the law. It explores the choices made by arbitral tribunals as they approach treaty interpretation, as they search for limits in determining jurisdiction and the content of the standards of protection and as they search for consistency in the exercise of arbitral discretion.
The end of the Cold War appeared to revitalise the Security Council and offered the prospect of restoring the United Nations to its central role in the maintenance of international peace and security. Between the Gulf War of 1990 and the 2003 invasion of Iraq, the UN Secretariat found itself in the midst of an unprecedented period of activity involving authorised and unauthorised actions leading to the use of force. In this 2010 book Ralph Zacklin examines the tensions that developed between the Secretariat and member states, particularly the five permanent members of the Security Council, concerning the process and content of the Council's actions in the Gulf War, Bosnia, Kosovo and the Iraq War as the Secretariat strove to give effect to the fundamental principles of the Charter.
The last decade of the twentieth century and the first decade of the twenty-first century has been one of the most challenging periods for the generally accepted assumptions of international law. This book, first published in 2006, grapples with these long-held assumptions (such as the consent basis of international law norms, equality of nations, restrictive or text-based treaty interpretations and applications, the monopoly of internal national power, and non-interference), and how they are being fundamentally altered by the forces of globalization. It also examines the challenges facing the WTO as a component of international economic law, and how that field is inextricably linked to general international law.
Denial of justice is one of the oldest bases of liability in international law and the modern understanding of denial of justice is examined by Paulsson in this book, which was originally published in 2005. The possibilities for prosecuting the offence of denial of justice have evolved in fundamental ways and it is now settled law that States cannot disavow international responsibility by arguing that their courts are independent of the government. Even more importantly, the doors of international tribunals have swung wide open to admit claimants other than states: non-governmental organisations, corporations and individuals, and Paulsson examines several recent cases of great importance in his book.
This book is the outcome of the Sir Hersch Lauterpacht Memorial Lectures delivered by the author at Cambridge University in 2001. It addresses three salient issues of contemporary international dispute settlement: the development of international constitutional law in a global society; the increasing access of the individual; and the developing role of international private arbitration. The book discusses recent thoughts and proposals concerning a new role for the International Court of Justice in performing judicial constitutional functions, with particular reference to the United Nations and the trends toward the recognition of judicial review. It also addresses the question of the eventual establishment of an International Constitutional Court. The increasing access of individuals to international dispute settlement is examined in the light of ICSID arbitration, free trade agreements and other developments in the WTO. Emerging trends in the organization of international commercial arbitration are discussed in the light of privatization arrangements.
The nations that drafted the UN Charter in 1945 clearly were more concerned about peace than about justice. As a result, the Charter prohibits all use of force by states except in the event of an armed attack or when authorised by the Security Council. This arrangement has only very imperfectly withstood the test of time and changing world conditions. In requiring states not to use force in self-defence until after they had become the object of an actual armed attack, the Charter failed to address a growing phenomenon of clandestine subversion and of instantaneous nuclear threats. Fortunately although the Charter is very hard to amend, the drafters did agree that it should be interpreted flexibly by the United Nations' principal political institutions. In this way the norms governing use of force in international affairs have been adapted to meet changing circumstances and new challenges. The book also relates these changes in law and practice to changing public values pertaining to the balance between maintaining peace and promoting justice.
International law was born from the impulse to 'civilize' late nineteenth-century attitudes towards race and society, argues Martti Koskenniemi in this extensive study of the rise and fall of modern international law. In a work of wide-ranging intellectual scope, now available for the first time in paperback, Koskenniemi traces the emergence of a liberal sensibility relating to international matters in the late nineteenth century, and its subsequent decline after the Second World War. He combines legal analysis, historical and political critique and semi-biographical studies of key figures (including Hans Kelsen, Hersch Lauterpacht, Carl Schmitt and Hans Morgenthau); he also considers the role of crucial institutions (the Institut de droit international, the League of Nations). His discussion of legal and political realism at American law schools ends in a critique of post-1960 'instrumentalism'. This book provides a unique reflection on the possibility of critical international law today.
Decisions of the International Court of Justice are almost as replete with references to precedent as are decisions of a common law court. Even though previous decisions are not binding, the Court relies upon them as authoritative expressions of its views on decided points of law. In his book, the distinguished international lawyer Judge Shahabuddeen examines various aspects of this phenomenon. He shows the extent to which the Court is guided by its previous decisions, and discusses the way in which parties to cases are themselves guided by decisions of the Court in framing and presenting their cases. He also traces the possibilities for future development of the system. Judge Shahabuddeen's analysis of the Court is a major contribution to this important subject.
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