Public International Law : oso

Linguistic Justice

Jacqueline Mowbray — 2013-01-24

Author:: Jacqueline Mowbray
ISBN:: 9780199646616
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199646616.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

As globalisation and migration produce societies of increasing linguistic diversity, the issue of how to ensure justice between speakers of different languages becomes a pressing social concern. Matters of ‘linguistic justice’ are therefore drawing increasing scholarly attention across a range of disciplines. How does international law contribute to linguistic justice? This book explores that question by conducting a comprehensive, interdisciplinary examination of international law on language, analysing the many disparate fields of international law which affect language use both directly (human rights, minority rights, and cultural heritage laws, for example) and indirectly (international trade law and international labour standards, among others). Moving beyond the technical analysis of legal provisions, the book explores the conceptual framework which underpins international law on language, unearthing underlying assumptions and ideas about what constitutes a ‘just’ language policy from a legal perspective. In doing so, the book draws on the methodology of sociologist Pierre Bourdieu, whose ideas of ‘habitus’ and ‘field’ offer a way of understanding the changing significance of language to human identity, and the way in which language becomes a focal point for the exercise of social power. This analysis reveals the limitations of contemporary international law on language, and charts a course towards the achievement of greater ‘linguistic justice’.

International Criminal Justice at the Yugoslav Tribunal

Mohamed Shahabuddeen — 2013-01-24

Author:: Mohamed Shahabuddeen
ISBN:: 9780199670826
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199670826.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

International criminal justice has undergone rapid recent development. Since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in the following year, the field has changed beyond recognition. The traditional immunity of presidents or heads of government, prime ministers, and other functionaries acting in an official capacity no longer prevails; the doctrine of superior orders is inapplicable except, where appropriate, as in mitigation; and the gap between international armed conflict and non-international armed conflict has closed. More generally, the bridge has been crossed between the irresponsibility of the state and the criminal responsibility of the individual. As a result, the traditional impunity of the state has practically gone. This book assesses some of the workings of the ICTY that have shaped these developments. It provides an insightful overview of the nature of this criminal court, established on behalf of the whole of the international community. It reflects on its transformation into one of the leading fora for the growth of international criminal law first-hand, offering a unique perspective on the challenges it has faced.

Informal International Lawmaking

Joost Pauwelyn, Ramses Wessel, and Jan Wouters — 2013-01-24

Author:: JoostPauwelynProfessor of International Law and Co-Director of the Centre for Trade and Economic Integration, Graduate Institute of International and Development Studies in GenevaRamsesWesselProfessor of the Law of the European Union and other International Organizations and Co-director Centre for European Studies, University of TwenteJanWoutersJean Monnet Chair and Professor of International Law and International Organizations, Director of the Leuven Centre for Global Governance Studies and Institute for International Law, University of Leuven.
ISBN:: 9780199658589
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199658589.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Informal international lawmaking (IN-LAW) is on the rise. It seems to fall outside the strictures of both domestic law as well as international law. Hence, this activity raises questions of accountability deficit. The book’s aim is to be empirical and problem-oriented. It intends to gauge whether there is a problem related to informal international lawmaking and, if so, to think about how to solve this problem in a way that can assist policy-makers and their stakeholders. The book distinguishes informal lawmaking from traditional lawmaking by focusing on the actors, process, and output. It argues that the international legal discipline will have to find ways to take the rich, effective, and (more often than not) legitimate normative output stemming from IN-LAW onboard to remain relevant.

How Interpretation Makes International Law

Ingo Venzke — 2013-01-24

Author:: Ingo Venzke
ISBN:: 9780199657674
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199657674.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

The texts of international law cannot talk — they are talked about. They passively submit to the need for interpretation and gain meaning in their use. Contrary to classic and still pervasive narrative suggesting that sovereign states make the law that constraints them, the book shows that in many and most constellations the contents of legal commitments is the product interpretation which shifts meanings and makes law. In the practice of interpretation actors compete over what the law really says and contribute to its making. What then matters in such discourse is an actor’s semantic authority — the capacity to find acceptance for interpretative claims and the ability to establish new reference points for legal discourse. The book identifies the practice of interpretation as a significant space of international lawmaking and draws specific attention to the increasing weight of international institutions in the struggle for the law. Past theoretical approaches come down with significant shortcomings in understanding interpretation as a bounded practice that has both the capacity to create as well as the faculty to control. The book leans on developments in linguistics and builds on semantic pragmatism to overcome old divides and to offer a fresh account of how the practice of interpretation makes international law. Its analytical ambition is paralleled by a discussion of the strong normative implications that immediately arise once received understandings of interpretation and sources doctrine are debunked as myopic and powerless in relation to semantic changes. The book thus closes with a discussion of the bittersweet taste of justice in legal argument, tests the potential of international law and its doctrine to respond to semantic change, and ultimately ponders the possibilities of democratic justification of semantic authority in a normative pluriverse.

The Global Model of Constitutional Rights

Kai Möller — 2013-01-24

Author:: Kai Möller
ISBN:: 9780199664603
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199664603.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Since the end of the Second World War and the subsequent success of constitutional judicial review, one particular model of constitutional rights has had remarkable success, first in Europe and now globally. This global model of constitutional rights is characterised by an extremely broad approach to the scope of rights (sometimes referred to as ‘rights inflation’), the acceptance of horizontal effect of rights, positive obligations and increasingly also socio-economic rights, and the use of the doctrines of balancing and proportionality to determine the permissible limitations of rights. Drawing on analyses of a broad range of cases from the U.K., the European Court of Human Rights, Germany, Canada, the U.S., and South Africa, this book provides the first substantive moral, reconstructive theory of the global model. It shows that it is based on a coherent conception of constitutional rights which connects to attractive accounts of judicial review, democracy and the separation of powers. The first part of the book develops a theory of the scope of rights under the global model. It defends the idea of a general right to personal autonomy, that is, a right to everything which, according to the agent's self-conception, is in his or her interest. The function of this right is to acknowledge that every act by a public authority which places a burden on a person's autonomy requires justification. The second part of the book provides a theory of the structure of this justification by proposing original and useful accounts of the important doctrines of balancing and proportionality.

The Design of Competition Law Institutions

Eleanor M Fox and Michael J Trebilcock — 2013-01-24

Author:: Eleanor MFoxWalter J. Derenberg Professor of Trade Regulation at New York University School of LawMichael JTrebilcockUniversity Professor and Professor of Law and Economics, University of Toronto
ISBN:: 9780199670048
Publisher:: Oxford University Press
Subjects:: Law, Competition Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199670048.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Competition (or antitrust) law is national law. More than 120 jurisdictions have adopted their own competition law. Is there a need for convergence of the competition law systems of the world? Much effort has been devoted to nudging substantive law convergence in the absence of an international law of competition. But it is widely acknowledged that institutions play as great a role as substantive principles in the harmonious — or dissonant — application of the law. This book provides an in-depth study of the institutions of antitrust. It does so through a particular inquiry: Do the competition systems of the world embrace substantially the same process norms? Are global norms embedded in the institutional arrangements, however disparate? Delving deeply into their jurisdictions, the chapters illuminate the inner workings of the systems and expose the process norms embedded within. Case studies feature Australia/New Zealand, Canada, Chile, China, Japan, South Africa, the USA, and the European Union, as well as the four leading international institutions involved in competition: the World Trade Organization, the Organization for Economic Cooperation and Development, the United Nations Conference on Trade and Development, and the International Competition Network; and the introductory and synthesizing chapter draws also from the new institutional arrangements of Brazil and India. The book reveals that there are indeed common process norms across the very different systems; thus, this study is a counterpart to studies on convergence of substantive rules. The synthesizing chapter observes an emerging ‘sympathy of systems’ in which global process norms, along with substantive norms, play a critical role. The book provides benchmarks for the field and suggests possibilities for future development when the norms are embraced in aspiration but not yet in practice.

The International Law of the Sea

O.P. Sharma — 2012-10-18

Author:: O.P. Sharma
ISBN:: 9780198060000
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198060000.001.0001
Published in print:: 2010
Published Online:: 2012-10-18

This book discusses the developments that have taken place in the laws of the sea in the last sixty years. The earlier European Law of the Sea was the special concern of a few seafaring nations and the dominant interests of the big maritime powers largely determined its shape and content. The United Nations Convention on the Law of the Sea (1982) now governs almost diverse uses of oceans during wartime as well as peace time, including international and domestic maritime trade. The author discusses how the Conventions’ regime on navigation through the territorial sea, international straits, exclusive economic zone, abatement and control of marine pollution, marine scientific research, and the international sea bed are fully in accord with India’s national interests. The author also analyses concepts like ocean governance, the limitations on the freedom and the importance of maritime cooperation in various spheres of the law of the sea. In terms of security issues in the future, the book asks for the creation of a cooperative (rather than a competitive) paradigm to prevent emerging threats from trans-national crimes and terrorism. The book also provides an overview of contentious issues between States, and discusses some cases that were dealt with by the International Court of Justice, the Law of the sea Tribunal, and national courts.

Targeted Killings

Claire Finkelstein, Jens David Ohlin, and Andrew Altman — 2012-09-20

Author:: ClaireFinkelsteinAlgernon Biddle Professor of Law and Professor of Philosophy, University of Pennsylvania; Co-Director, University of Pennsylvania Institute of Law and PhilosophyJens DavidOhlinAssociate Professor of Law, Cornell Law SchoolAndrewAltmanProfessor of Philosophy, Georgia State University; Director of Research, Jean Beer Blumenfeld Center for Ethics
ISBN:: 9780199646470
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199646470.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The war on terror is remaking conventional warfare. The protracted battle against a non-state organization, the demise of the confinement of hostilities to an identifiable battlefield, the extensive involvement of civilian combatants, and the development of new and more precise military technologies have all conspired to require a rethinking of the law and morality of war. Just war theory, as traditionally articulated, seems ill-suited to justify many of the practices of the war on terror. The raid against Osama Bin Laden's Pakistani compound was the highest profile example of this strategy, but the issues raised by this technique cast a far broader net: every week the U.S. military and CIA launch remotely piloted drones to track suspected terrorists in hopes of launching a missile strike against them. In addition to the public condemnation that these attacks have generated in some countries, the legal and moral basis for the use of this technique is problematic. Is the U.S. government correct that nations attacked by terrorists have the right to respond in self-defense by targeting specific terrorists for summary killing? Is there a limit to who can legitimately be placed on the list? There is also widespread disagreement about whether suspected terrorists should be considered combatants subject to the risk of lawful killing under the laws of war or civilians protected by international humanitarian law. Complicating the moral and legal calculus is the fact that innocent bystanders are often killed or injured in these attacks. It discusses all aspects of targeted killing.

Realizing Utopia

The Late Antonio Cassese — 2012-09-20

Author:: The Late AntonioCasseseFormer President, Special Tribunal for Lebanon
ISBN:: 9780199691661
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199691661.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book is a collection by a group of innovative international jurists. Its contributors reflect on some of the major legal problems facing the international community and analyse the inconsistencies or inadequacies of current law. They highlight the elements — even if minor, hidden, or emerging — that are likely to lead to future changes or improvements. Finally, the chapters suggest how these elements can be developed, enhanced, and brought to fruition in the next two or three decades, with a view to achieving an improved architecture of world society or, at a minimum, to reshaping some major aspects of international dealings. Contributions to the book thus try to discern the potential, in the present legal construct of world society, that might one day be brought to light in a better world. As the impact of international law on national legal orders continues to increase, this volume takes stock of how far international law has come and how it should continue to develop.

The Margin of Appreciation in International Human Rights Law

Andrew Legg — 2012-09-20

Author:: Andrew Legg
ISBN:: 9780199650453
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199650453.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can Lawyers make best use of arguments for or against the margin of appreciation? This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the European Court of Human Rights system. It provides a comprehensive justification of the doctrine, and catalogues the key cases affecting the doctrine in practice. Part One provides a systematic defence of the margin of appreciation doctrine in international human rights law. Drawing on the philosophy of practical reasoning the book argues that the margin of appreciation is a doctrine of judicial deference and is a common and appropriate feature of adjudication. The book argues that the margin of appreciation doctrine prevents courts from imposing unhelpful uniformity, whilst allowing decisions to be consistent with the universality of human rights. Part Two considers the key case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, documenting the margin of appreciation in practice. The analysis uniquely takes a broad look at the factors affecting the margin of appreciation. Part Three explores how the margin of appreciation operates in the judicial decision-making process, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.

International Prosecutors

Luc Reydams, Jan Wouters, and Cedric Ryngaert — 2012-09-20

Author:: LucReydamsAssociate Professional Specialist, Department of Political Science, University of Notre Dame, Notre Dame, IN, USAJanWoutersJean Monnet Chair Ad Personam EU and Global Governance Professor of International Law and International Organizations Director, Leuven Centre for Global Governance StudiesCedricRyngaertAssistant Professor of International Law at the Universities of Leuven and Utrecht
ISBN:: 9780199554294
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199554294.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book examines the prosecution as an institution and a function in a dozen international and hybrid criminal tribunals, from Nuremberg to the International Criminal Court. It is the result of a sustained collaborative effort among some twenty scholars and (former) tribunal staffers. The starting point is that the prosecution shapes a tribunal's practice and legacy more than any other organ and that a systematic examination of international prosecutors is therefore warranted. The chapters are organized chronologically, according to the successive phases of the life of the institution and the various stages of the trials. The analysis includes each institution's establishment, mandate, and jurisdiction, as well as the prosecutorial framework and strategy, the prosecutor's external relations, and the completion of the institution's work. The book also considers the prosecutors'independence and impartiality, and their accountability for their decisions. The volume thus provides a picture of the mandate, organization, and operation of the prosecution in international criminal trials.

International Law as Social Construct

Carlo Focarelli — 2012-09-20

Author:: Carlo Focarelli
ISBN:: 9780199584833
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199584833.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The book distils and articulates international law as a social construct. It does so by analysing its social foundations, essence, and roots in practical and socially workable (as opposed to ‘pure’) reason. In addition to well-known doctrines of jurisprudence and international law, it draws upon psycho-analytic insights into the origins and nature of law, as well as philosophical social constructivism. The work suggests that seeing law as a social construct is crucial to our understanding of international law and to the struggle to create better working rules. The book re-conceptualizes both past and new doctrines of international law as ‘constructs’, namely, as strategies of concomitantly de-mythologizing and re-mythologizing international law. Key areas of international law, including subjects, sources, hierarchy, values, and remedies, are shown to be part of this process. The social impact on international law of transnational actors and stakeholders, normative fragmentation, global justice, legitimacy of rules and players, dynamics and hierarchization of norms, compliance and implementation in municipal law is also extensively investigated. Five basic values of the international community, namely security, humanity, wealth, environment, and knowledge, are explored by stressing their inter- and intra-tensions. Finally, the analysis is extended to the role that international courts play in the prosecution of heads of state and other transnational players who violate international law.

The History of ICSID

Antonio R. Parra — 2012-09-20

Author:: Antonio R. Parra
ISBN:: 9780199660568
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Legal History
DOI:: 10.1093/acprof:oso/9780199660568.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book details the history and development of the International Centre for Settlement of Investment Disputes (ICSID) and its constituent treaty, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, covering the years from 1955 to 2010. The book traces the immediate origins of the Convention, in the years 1955 to 1962, and gives a stage-by-stage narrative of the drafting of the Convention between 1962 and 1965. It recounts details of bringing the Convention into force in 1966 and the elaboration of the initial versions of the Regulations and Rules of ICSID adopted at the first meetings of its Administrative Council in 1967. The three periods 1968 to 1988, 1989 to 1999, and 2000 to June 30, 2010, are covered in separate chapters which examine the expansion of the Centre's activities and changes made to the Regulations and Rules over the years. There are also overviews of the conciliation and arbitration cases submitted to ICSID in the respective periods, followed by in-depth discussions of selected cases and key issues within them. A concluding chapter discusses some of the broad themes and findings of the book, and includes several suggestions for further changes at ICSID to help ensure its continued success.

Governance by Indicators

Kevin Davis, Angelina Fisher, Benedict Kingsbury, and Sally Engle Merry — 2012-09-20

Author:: KevinDavisBeller Family Professor of Business Law, New York University School of LawAngelinaFisherProgramme Director, NYU's Institute for International Law and BusinessBenedictKingsburyMurray and Ida Becker Professor of Law, New York University School of LawSallyEngle MerryProfessor of Anthropology, Law, and Society, New York University
ISBN:: 9780199658244
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199658244.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The use of indicators as a technique of global governance is increasing rapidly. Major examples include the World Bank's Doing Business Indicators, the World Bank's Good Governance and Rule of Law indicators, the Millennium Development Goals, and the indicators produced by Transparency International. Human rights indicators are being developed in the UN and regional and advocacy organizations. The burgeoning production and use of indicators has not, however, been accompanied by systematic comparative study of, or reflection on, the implications, possibilities, and pitfalls of this practice. This book furthers the study of these issues by examining the production and history of indicators, as well as relationships between the producers, users, subjects, and audiences of indicators. It also explores the creation, use, and effects of indicators as forms of knowledge and as mechanisms of making and implementing decisions in global governance. Using insights from case studies, empirical work, and theoretical approaches from several disciplines, the book identifies legal, policy, and normative implications of the production and use of indicators as a tool of global governance.

Unimaginable Atrocities

William Schabas — 2012-05-24

Author:: William Schabas
ISBN:: 9780199653072
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199653072.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

As international criminal courts and tribunals have proliferated and international criminal law is increasingly seen as a key tool for bringing the world's worst perpetrators to account, the controversies surrounding the international trials of war criminals have grown. War crimes tribunals have to deal with accusations of victor's justice, bad prosecutorial policy and case management, and of jeopardizing fragile peace in post-conflict situations. This book explores these controversial issues in a manner that is accessible.

Rwanda's Gacaca Courts

Paul Christoph Bornkamm — 2012-05-24

Author:: Paul Christoph Bornkamm
ISBN:: 9780199694471
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199694471.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

Rwanda's Gacaca courts provide an innovative response to the genocide of 1994. Incorporating elements of both African dispute resolution and of Western-style criminal courts, Gacaca courts are in line with recent trends to revive traditional grassroots mechanisms as a way of addressing a violent past. Having been devised as a holistic approach to prosecution and punishment as well as to healing and repairing, they also reflect the increasing importance of victim participation in international criminal justice. This book critically examines the Gacaca courts' achievements as a mechanism of criminal justice and as a tool for healing, repairing, and reconciling the shattered communities. Having prosecuted over one million people suspected of crimes during the 1994 genocide, the courts have been both praised for their efficiency and condemned for their lack of due process. Drawing upon extensive observations of trial proceedings, this book provides a detailed analysis of the Gacaca legislation and its practical implementation. It discusses the Gacaca courts within the framework of transitional and international criminal justice and argues that, despite the trend towards local, tailor-made solutions to the challenges of political transition, there is a common set of principles to be respected in addressing the past. Evaluating the Gacaca courts against the backdrop of existing or emerging principles, such as the duties to investigate and prosecute, and the right to the truth, the book provides a sophisticated critique of Rwanda's reconciliation policy. In doing so, it contributes to the development and the clarification of these principles. It concludes that Gacaca courts have achieved a great deal in stimulating a basic discourse on the genocide, but they have also contributed to assigning collective responsibility and may thus end up deepening the divides within Rwandan society.

The Right to Have Rights

Alison Kesby — 2012-05-24

Author:: Alison Kesby
ISBN:: 9780199600823
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199600823.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a ‘right to have rights’. This right to have rights was the right to citizenship—to membership of a political community. Since then, and especially in recent years, theorists have continued to grapple with the meaning of the right to have rights. In the context of enduring statelessness, mass migration, people flows, and the contested nature of democratic politics, the question of the right to have rights remains of pressing concern for writers and advocates across the disciplines. This book provides the first in-depth examination of the right to have rights in the context of the international protection of human rights. It explores two overarching questions. First, how do different and competing conceptions of the right to have rights shed light on right-bearing in the contemporary context, and in particular on concepts and relationships central to the protection of human rights in public international law? Secondly, given these competing conceptions, how is the right to have rights to be understood in the context of public international law? In the course of the analysis, the author examines the significance and limits of citizenship, nationality, humanity, and politics for right-bearing, and argues that their complex interrelation points to how the right to have rights might be rearticulated for the purposes of international legal thought and practice.

Religious Liberty in Western and Islamic Law

Kristine Kalanges — 2012-05-24

Author:: Kristine Kalanges
ISBN:: 9780199859467
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Comparative Law
DOI:: 10.1093/acprof:oso/9780199859467.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

This book argues that differences between Western and Islamic legal formulations of religious freedom are attributable, in substantial part, to variations in their respective religious and intellectual histories. The book suggests that while divergence between the two bodies of law challenges the characterization of religious liberty as a universal human right, the “dilemma of religious freedom”—the difficult choice between the universality of religious liberty rights and peaceful co-existence of diverse legal cultures—may yet be transformed through the cultivation of a world legal tradition. This argument is advanced through comparative analysis of human rights instruments from the Western and Muslim worlds, with attention to the legal-political processes by which religious and philosophical ideas have been institutionalized.

Reimagining Child Soldiers in International Law and Policy

Mark A. Drumbl — 2012-05-24

Author:: Mark A. Drumbl
ISBN:: 9780199592654
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199592654.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

The international community's efforts to halt child soldiering have yielded some successes. But this pernicious practice persists. It may shift locally, but it endures globally. Preventative measures therefore remain inadequate. Former child soldiers experience challenges readjusting to civilian life. Reintegration is complex and eventful. The homecoming is only the beginning. Reconciliation within communities afflicted by violence committed by and against child soldiers is incomplete. Shortfalls linger on the restorative front. Still, conversations about child soldiers mostly involve the same story, told over and over, and repeat the same assumptions, over and over. Current humanitarian discourse sees child soldiers as passive victims, tools of war, vulnerable, psychologically devastated, and not responsible for their violent acts. This perception has come to suffuse international law and policy. Although reflecting much of the lives of child soldiers, this portrayal also omits critical aspects. This book pursues an alternate path by reimagining the child soldier. It approaches child soldiers with a more nuanced and less judgmental mind. It offers a way to think about child soldiers that would invigorate international law, policy, and best practices. Where does this reimagination lead? Not toward retributive criminal trials, but instead toward restorative forms of justice. Toward forgiveness instead of excuse, thereby facilitating reintegration and promoting social repair within afflicted communities. Toward a better understanding of child soldiering, without which the practice cannot be ended. This book also offers fresh thinking on related issues, ranging from juvenile justice, to humanitarian interventions, to the universality of human rights, to the role of law in responding to mass atrocity.

Individual Criminal Responsibility in International Law

Elies van Sliedregt — 2012-05-24

Author:: Elies van Sliedregt
ISBN:: 9780199560363
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199560363.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

This book examines the concept of individual criminal responsibility for serious violations of international law, i.e., aggression, genocide, crimes against humanity, and war crimes. Such crimes are rarely committed by single individuals. Rather, international crimes generally connote a plurality of offenders, particularly in the execution of the crimes, which are often orchestrated and masterminded by individuals behind the scene of the crimes who can be termed ‘intellectual perpetrators’. For a determination of individual guilt and responsibility, a fair assessment of the mutual relationships between those persons is indispensable. By setting out how to understand and apply concepts such as joint criminal enterprise, superior responsibility, duress, and the defence of superior orders, this work provides a framework for that assessment. It does so by bringing to light the roots of these concepts, which lie not merely in earlier phases of development of international criminal law but also in domestic law and legal doctrine. The book also critically reflects on how criminal responsibility has been developed in the case law of international criminal tribunals and courts. It thus illuminates and analyses the rules on individual responsibility in international law.

Hierarchy in International Law

Erika De Wet and Jure Vidmar — 2012-05-24

Author:: ErikaDe WetCo-Director and Professor of International Law, Institute for International and Comparative Law in Africa, University of Pretoria; Professor of International Constitutional Law, University of AmsterdamJureVidmarAnglo-German Fellow, Institute of European and Comparative Law, Faculty of Law, University of Oxford
ISBN:: 9780199647071
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199647071.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

This book takes an inductive approach to the question of whether there is a hierarchy in international law, with human rights obligations trumping other duties. It assesses the extent to which such a hierarchy can be said to exist through an analysis of the case law of national courts. Each chapter of the book examines domestic case law on an issue where human rights obligations conflict with another international law requirement, to see whether national courts gave precedence to human rights. If this is shown to be the case, it would lend support to the argument that the international legal order is moving toward a vertical legal system, with human rights at its apex. In resolving conflicts between human rights obligations and other areas of international law, the practice of judicial bodies, both domestic and international, is crucial. Judicial practice indicates that norm conflicts typically manifest themselves in situations where human rights obligations are at odds with other international obligations, such as immunities; extradition and refoulement; trade and investment law; and environmental protection. This book sets out and analyses the relevant case law in all of these areas.

Energy Networks and the Law

2012-05-24

Author:: Martha M.RoggenkampProfessor of Energy Law and Director of the Groningen Centre of Energy Law, University of Groningen, The NetherlandsLilaBarrera-HernándezAdjunct Assistant Professor, Faculty of Law, University of Calgary, CanadaDonald N.ZillmanPresident of the University of Maine at Presque Isle; Godfrey Professor, University of Maine Law School, USIñigodel GuayoProfessor in Administrative Law, University of Almería, Spain
ISBN:: 9780199645039
Publisher:: Oxford University Press
Subjects:: Law, Environmental and Energy Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199645039.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

Networks such as cables and pipelines are essential for a functioning energy market. This book provides an overview of the legal challenges this poses in the modern world. The construction and use of these networks depends on developments in technology, policies, and legal regulation. Recently, the energy sector has been faced with considerable challenges and changes. Energy liberalization and deregulation, and the fact that traditional energy supplies like fossil fuels and large hydro plants are increasingly located far from the area of demand has drastically changed the energy landscape. The need for new sources of energy supply can therefore be found all over the world. This book investigates the challenges that face governments engaged in this renewal, particularly since in many cases these networks are, by necessity, international. The construction of new networks always involves the application of planning and environmental laws, and the complications these pose only increase as networks pass through the territory of several different countries. This book analyses the evolution of this area from several angles, both geographical and legal.

Development at the World Trade Organization

Sonia E. Rolland — 2012-05-24

Author:: Sonia E. Rolland
ISBN:: 9780199600885
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199600885.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

This book engages in a systematic analysis of development-oriented rules and procedures at the WTO. It argues that the shortcomings of the Doha Development Round are due in part to the failure to assess trade rules as part of the legal processes and institutions that produce them. A consideration of the development dimension at the WTO must account for the impact of the WTO as an institution on developing and least developed members. The book then seeks to open some paths for reconsidering the trade and development relationship at the WTO taking into account both the heritage of the trade regime and present dynamics. From a pragmatic perspective, this book provides a coherent and systematic analysis of the legal value, the implementation, and the adjudication of special and differential treatment rules for developing members at the WTO. From a theoretical perspective, it posits two paradigms to evaluate different regulatory approaches to trade and development: One where development is considered as a core normative constituent of the trade liberalizing mission of the WTO and one where development considerations are considered on an ad hoc basis. As a prescriptive analysis, it presents a menu of options towards a more functional balance of trade liberalization processes and the development imperatives of many WTO members.

Constitutional Fragments

Gunther Teubner — 2012-05-24

Author:: Gunther Teubner
ISBN:: 9780199644674
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199644674.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

Over the past few years, a series of political scandals have raised the ‘new constitutional question’. Multinational corporations violated human rights; private intermediaries in the internet threatened freedom of opinion, and recently, with particular impact, the global capital markets unleashed catastrophic risks — all of these pose constitutional problems in the strict sense. It is outside the limits of the nation-state in transnational politics and, at the same time, outside institutionalized politics, in the ‘private’ sectors of global society that these constitutional problems arise. The crisis in traditional constitutionalism is caused by transnationalization and privatization. The main thesis of the book is: The obstinate state-and-politics-centricity of traditional constitutionalism needs to be counteracted by a sociological approach which, so far, has remained unheard in the constitutional debate. Constitutional sociology projects the constitutional question not only onto the relationship between politics and law, but also onto the whole society. It is particularly in the so-called private sectors of world society that constitutional conflicts are emerging. Constitutionalism has the potential to counteract the expansionist tendencies of social systems outside the state, particularly the globalized economy, science and technology, and the information media, when they endanger individual or institutional autonomy. The book identifies transnational regimes, particularly in the private area, as the new constitutional subjects in the global space which compete with the nation states. It analyses transnational societal constitutions in their functions, arenas, processes, and structures. It deals with the horizontal effects of constitutional rights in situations when transnational corporations violate human rights obligations. And it suggests solutions for collisions between different transnational regime constitutions.

Compliance and the Enforcement of EU Law

Marise Cremona — 2012-05-24

Author:: MariseCremonaProfessor of European Law at the European University Institute, Florence
ISBN:: 9780199644735
Publisher:: Oxford University Press
Subjects:: Law, EU Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199644735.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

The enlargement of the EU has highlighted the challenges of compliance, but it has also helped to suggest new compliance methodologies. The combination of methodologies used by the EU and the differing levels of enforcement available are characteristic of the EU's compliance system, permitting the remarkable reach and penetration of EU norms into national systems. This study offers assessment of the enforcement procedures and compliance processes that have been developed to ensure Member State compliance with EU law. The first three chapters examine the merits of combing both coercive and problem-solving strategies, describing the systems in place and focusing on the different levels at which compliance mechanisms operate: national, regional, and international. It also looks at horizontal compliance as well as ‘from above’ compliance, creating a complex and rich picture of the EU's system. The final three chapters of the book focus on different aspects of compliance seen from a national perspective. The first analyses the two bases for the use of criminal sanctions to enforce EU law: the ability of Member States to choose to include criminal penalties for non-compliance in their national law; and the imposition of criminal sanctions at a national level by EU law itself. The book then moves on to a discussion of the role of national courts in ensuring Member State compliance with, and enforcement of, EU law. It examines the role of national constitutional courts in facilitating compliance with EU law and draws comparisons between EU law and international law and their interactions both with each other and with national constitutional courts.

Climate Change, Forced Migration, and International Law

Jane McAdam — 2012-05-24

Author:: Jane McAdam
ISBN:: 9780199587087
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199587087.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

Displacement caused by climate change is an area of growing concern. With current rises in sea levels and changes to the global climate, it is an issue of fundamental importance to the future of many parts of the world. This book critically examines whether States have obligations to protect people displaced by climate change under international refugee law, international human rights law, and the international law on statelessness. Drawing on field work undertaken in Bangladesh, India, and the Pacific island States of Kiribati and Tuvalu, the book evaluates whether the phenomenon of ‘climate change-induced displacement’ is an empirically sound category for academic inquiry. It does so by examining the reasons why people move (or choose not to move); the extent to which climate change, as opposed to underlying socio-economic factors, provides a trigger for such movement; and whether traditional international responses, such as the conclusion of new treaties and the creation of new institutions, are appropriate solutions in this context. In this way, the book queries whether flight from habitat destruction should be viewed as another facet of traditional international protection or as a new challenge requiring more creative legal and policy responses.

War Crimes Law Comes of Age

Theodor Meron — 2012-03-22

Author:: Theodor Meron
ISBN:: 9780198268567
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198268567.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

This collection brings together the author's essays on war crimes and related areas. The rapid and fundamental developments in the last few years in the establishment of individual criminal responsibility for serious violations of international humanitarian law have been such that now more than ever is an appropriate time to assess their principal features.

Transatlantic Regulatory Cooperation

George A. Bermann, Matthias Herdegen, and Peter L. Lindseth — 2012-03-22

Author:: George A.BermannColumbia University School of LawMatthiasHerdegenUniversitat Bonn, Rechts - und Staatswissenschaftlich FakultatPeter L.LindsethUniversity of Connecticut
ISBN:: 9780198298922
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198298922.001.0001
Published in print:: 2001
Published Online:: 2012-03-22

International regulatory relations have commonly been viewed through the prism of international organizations on the one hand, and international trade disputes on the other. However, neither of these perspectives offer an adequate understanding of the ways in which international regulatory relations are managed or may be managed more effectively. While one risks overstating the readiness of states to cede regulatory authority to international institutions, the other risks ignoring the reality of and prospects for cooperative behavior. Transatlantic regulatory cooperation comprises a highly differentiated ‘bundle’ of techniques for reconciling the needs of international trade with the diversity of national regulatory environments and public demands. The processes involved are still poorly understood, due partly to the fact that they have been very largely improvisational, with the result that the framework of regulatory cooperation is still very much a work in progress. Moreover, the main protagonists in this arena – the US and EU – have their own well-established domestic regulatory processes with which international initiatives may not readily be integrated, either in terms of values or institutions. While focusing on illustrative sectoral examples of transatlantic regulatory cooperation, this book thus also explores the more general challenge of accommodating regulatory cooperation with domestic legal and political institutions. The volume closes by calling attention to inescapable legitimacy questions (e.g. reconciliation with principles of democracy and demands for public accountability), and by exploring certain strategic directions and institutional implications for the future.

Transatlantic Economic Disputes

Ernst-Ulrich Petersmann and Mark A. Pollack — 2012-03-22

Author:: Ernst-UlrichPetersmannEuropean University InstituteMark A.PollackEuropean University Institute
ISBN:: 9780199261727
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199261727.001.0001
Published in print:: 2003
Published Online:: 2012-03-22

Recent transatlantic relations have been plagued by a seemingly endless series of disputes over trade and other economic and political interests. Some of these disputes have been amongst the most prominent of the WTO era: the Bananas Case, the Beef Hormones Case, and over the application of the Helms–Burton Act. This book analyzes the source of transatlantic disputes, the means employed to prevent and settle such disputes both bilaterally and through the dispute settlement mechanism of the WTO, and to identify promising areas for reform. This book begins with a survey of transatlantic governance and dispute-settlement problems. Part II analyzes 14 case studies of transatlantic economic and regulatory disputes written by leading EU and US experts. The analytical papers in Part III examine the disputes in the broader context of legal, economic, and political theories of dispute prevention and dispute settlement. Part IV offers policy recommendations from EU and US policy makers and academics. Most of the more than 20 contributors conclude that joint EU–US leadership in multilateral institutions (e.g., for trade liberalization, dispute prevention, and dispute settlement in the WTO) offers advantages over bilateral approaches. By contrast, a potential transatlantic free-trade association (TAFTA) remains the second-best approach, which might not prevent many of the transatlantic disputes over internal trade-related domestic policies. Transatlantic initiatives e.g., for regulatory cooperation and citizen-oriented institutional reforms can, however, serve as precedents for multilateral reforms (e.g., of WTO rules).

Themes and Theories

Pat Rogers — 2012-03-22

Author:: Pat Rogers
ISBN:: 9780198262350
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198262350.001.0001
Published in print:: 2009
Published Online:: 2012-03-22

As President of the International Court of Justice, the author of this book is the world’s most senior Judge. This two volume set collects together all of her most important writings as a scholar, a member of the United Nations Human Rights Committee, and as Judge and President of the International Court of Justice (ICJ). During these years, she has written on a wide range of topics including legal theory, United Nations Law, humanitarian law, the use of force, state immunity and diplomatic immunity, human rights, and natural resources law. As President and Judge of the ICJ, the author has played her part in the formulation of the Judgments and Opinions of the principal judicial organ of the UN. She has sought to ensure the ICJ — the senior international court — operates in a modern and efficient manner, and in cordial relationship with the many new courts and tribunals now existing. These aspirations are reflected in her speeches during the years 2006 to 2009, most of which have not hitherto been published. This volume contains a collection of all her Separate Opinions, amongst other writings, divided into ten Parts by subject matter. This includes specially written introductory passages by the author to present the catalogue of her writings and the correlative developments in international law by theme.

Studies in International Space Law

Bin Cheng — 2012-03-22

Author:: Bin Cheng
ISBN:: 9780198257301
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198257301.001.0001
Published in print:: 1997
Published Online:: 2012-03-22

This book consists of a collection of studies in international space law. Those that have been previously published are revised and updated. Publication coincides with the thirtieth anniversary of the first ever multilateral treaty on outer space, which established an agreed international legal framework for the exploration and use of outer space. The book’s twenty-six chapters examine the major developments and issues of the law governing human activities in space — those of states as well as those of private entities — ranging from television broadcasts, the regulation of space junk, and the governance of State activities on the moon to the legal status of astronauts, the nationality of spacecraft, and arms control. Chapters also examine the effect and influence of UN Treaties in this area. In this examination of this branch of the law, the book has drawn lessons for the future development of international law in general.

The Structure of Regulatory Competition

Dale D. Murphy — 2012-03-22

Author:: Dale D. Murphy
ISBN:: 9780199216512
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199216512.001.0001
Published in print:: 2006
Published Online:: 2012-03-22

In order to understand international economic regulations, it is essential to understand the variation in competing corporations' interests. Political science theories have neglected the role of individual firms as causal actors. Theories of institutions have neglected to examine the creation of business law. Economic theories have neglected to apply concepts of asset specificity to social regulations in competitive industries. This book aims to fill these voids with a company-based explanation. Its theoretical findings open a ‘black box’ in the literature on international political economy and elucidate a source of regulatory differences and similarities. Counter-intuitive case studies reveal how business and governments actually interact. They also contribute to both sides of current debates over corporate social responsibility. They examine diverse topics including offshore finance, flags-of-convenience, CFC production, capital requirements, the importation and sale of ‘dolphin-lethal’ tuna, and the advertising of infant formulae. By exploring powerful corporations' investment profiles and regulatory strategies, this book explains why globalization sometimes results in a ‘race to the bottom’, sometimes in higher common regulations, and sometimes in regulations that differ between countries. Uniquely, it then explains which regulatory outcome is likely to occur under specified conditions. The explanation incorporates economics, political science, studies of regulatory capture, examinations of transaction costs, firms' regulatory strategies, and the roles of international institutions.

State, Sovereignty, and International Governance

Gerard Kreijen, Marcel Brus, Jorris Duursma, Elizabeth De Vos, and John Dugard — 2012-03-22

Author:: GerardKreijenLecturer in Public International Law, Leiden UniversityMarcelBrusJorrisDuursmaElizabethDe VosJohnDugard
ISBN:: 9780199245383
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199245383.001.0001
Published in print:: 2002
Published Online:: 2012-03-22

How can the international community respond to states that fail to respect fundamental rules of international law? Does a state that collapses into anarchy lose its sovereignty? Does the increasingly important role of non-state actors at the international level diminish the role of sovereign states in international law? Is it possible to design more speedy and effective decision-making procedures to deal with global problems? Finding answers to these questions requires a reconsideration of what constitutes the core of present-day international law. State sovereignty has always been regarded as the backbone of international law but is its importance now diminishing? In order to shed some light on these issues, this book reflects on these questions, and in particular on the question of the role of state sovereignty in present-day international law. Although the contributors have chosen quite different approaches to these issues, none of them regards the sovereignty of the state as something of the past. However they do conclude that sovereignty can no longer be defined independently of the basic needs and values of the international community as a whole. A new balance has to be found between the power of the sovereign state and the powers of the international community in creating a stable and just international order.

State Responsibility for Transboundary Air Pollution in International Law

Phoebe Okowa — 2012-03-22

Author:: Phoebe Okowa
ISBN:: 9780198260974
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198260974.001.0001
Published in print:: 2000
Published Online:: 2012-03-22

This book systematically analyses the unique nature of problems that transboundary air pollution presents in international law. Although an attempt is made to present transboundary air pollution as a unified field, a distinction is made between pollution from industrial and related sources, and those from nuclear operations, given the very serious nature of risks that nuclear pollution presents. The book extensively considers existing regulatory frameworks as found in treaty regimes and non-binding instruments. The role as well as the shortcomings of traditional international law is given extended treatment, especially the application of principles of state responsibility to problems involving multiple actors, and which cannot therefore be easily accommodated within the present bilateral framework of dispute resolution in international law. The potential role of institutions charged with supervising compliance is also undertaken and the status of emergent principles is critically assessed. The issues examined in this book are of much contemporary relevance and will appeal to those interested in the legal aspects of transboundary air pollution as well as those concerned with the general issues surrounding the application of international law to environmental problems.

Standards of Review in WTO Dispute Resolution

Matthias Oesch — 2012-03-22

Author:: Matthias Oesch
ISBN:: 9780199268924
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199268924.001.0001
Published in print:: 2003
Published Online:: 2012-03-22

This volume is a unique study on the highly controversial issue of standard of review in WTO dispute resolution. Standards of review reflect the extent to which the WTO adjudication bodies can override the decisions taken by national authorities. As such they play a crucial role in shaping the balance of power and responsibility for decisions on factual and legal issues. In recent years they have gained unprecedented political and systemic significance in WTO panel proceedings. To what extent should panels and the Appellate Body review policy determinations of national or regional authorities of WTO members, both in terms of facts and law? Should they be guided by a policy of judicial restraint or should they review domestic measures de novo? This volume first addresses the tense relationship between international interdependence and national sovereignty against which WTO dispute settlement takes place. It then examines the notion of standards of review as one of the crucial elements in shaping the balance of power and responsibility for decisions on factual and legal issues. The current state of law and practice, which has emerged through panel and Appellate Body reports, is analysed and critically assessed in a commentary on the evolution of, and inconsistencies amongst, the relevant cases. This book contributes to the clarification of basic issues of global Constitutionalism and the interface between domestic and international law.

Standards of Investment Protection

August Reinisch — 2012-03-22

Author:: AugustReinischProfessor of Public International Law and EC Law at the University of Vienna
ISBN:: 9780199547432
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199547432.001.0001
Published in print:: 2008
Published Online:: 2012-03-22

This book examines the standards of treatment demanded by host states, which form the basis of contemporary international investment protection. It analyses the core standards commonly contained in bilateral and multilateral investment treaties, including ‘fair and equitable treatment’, ‘full protection and security’, and the non-discrimination standards. The burgeoning case law before arbitral tribunals has exercised a huge influence on how these standards are interpreted in practice. The essays in this volume, by leading practitioners and scholars in the field of investment arbitration, analyse the case law and provide a framework for a common consensus to emerge on how the standards should be applied in future.

The Responsibility of States for International Crimes

Nina H. B. Jørgensen — 2012-03-22

Author:: Nina H. B. Jørgensen
ISBN:: 9780198298618
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198298618.001.0001
Published in print:: 2000
Published Online:: 2012-03-22

This book focuses on the concept of state responsibility for international crimes. Part I consists of an historical introduction to the concept which deals, in particular, with the issue of international accountability following the First and Second World Wars and goes on to trace efforts to codify and develop the law relating to international criminal responsibility. In Part II, the concept is analysed in accordance with a criminal organization model and a corporate crime model and against this background the concept is found to be juridically sound. In Part III, eight candidate criteria and indicia are discussed which form a conceptual differentiation between state crimes and other wrongful acts or delicts. On the basis of this analysis it is submitted that the concept is an emergent general principle of international law. Part IV considers the problems and modalities of punishing a state and addresses the question of an institutional framework for imposing criminal responsibility on states. The issues discussed in Part IV are found to confirm the concepts status as an emergent general principle of international law. An investigation into the status of the concept in contemporary international law is undertaken in Part V with particular emphasis on the 1948 Genocide Convention and the 1996 Judgment of the International Court of Justice in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections) between Bosnia-Herzegovina and Yugoslavia. It is concluded that the concept is emerging as customary international law.

Reparations for Indigenous Peoples

Federico Lenzerini — 2012-03-22

Author:: FedericoLenzeriniProfessor of Law, University of Siena and Consultant to UNESCO
ISBN:: 9780199235605
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199235605.001.0001
Published in print:: 2008
Published Online:: 2012-03-22

The volume brings together a group of legal experts and activists from different parts of the world who, from international and comparative perspectives, consider the right of indigenous peoples to reparations for breaches of their individual and collective rights. The first part of the book is devoted to general aspects of this important question, providing a comprehensive assessment of the relevant international legal framework and including overviews of the topic of reparations for human rights violations, the status of indigenous peoples in international law, and the vision of reparations as conceived by the peoples concerned. The second part embraces a comprehensive investigation of the relevant practice at the international, regional, and national level, including some in-depth case-studies, offering a comparative perspective on the ways in which the right of indigenous peoples to reparation is realized worldwide. The contributions forming the second part also examine the best practices for granting effective reparations, according to the ideologies and expectations of the communities concerned. The global picture painted by these contributions offers a view of the status of relevant international law that is synthesised in the final chapter, which also prescribes the best practices and strategies to be adopted in order to maximize concrete opportunities for indigenous peoples to obtain effective redress. As a whole, the volume offers a comprehensive vision of its subject matter in international and comparative law, with a practical approach aimed at supporting legal academics, administrators, and practitioners concerned with improving the avenues and modalities of reparations for indigenous peoples.

Regional Trade Agreements and the WTO Legal System

Lorand Bartels and Federico Ortino — 2012-03-22

Author:: LorandBartelsLecturer in International Economic Law, University of EdinburghFedericoOrtinoReader in International Economic Law, Kings College London
ISBN:: 9780199206995
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199206995.001.0001
Published in print:: 2006
Published Online:: 2012-03-22

This book is concerned with the legal aspects of regional trade agreements — free trade agreements and customs unions. There are currently around 300 regional trade agreements, and these continue to proliferate. As a result, this is becoming an increasingly important part of WTO law. This book investigates these agreements, and examines their regulation under WTO rules. It also looks at the relationship of these agreements to the WTO from the perspective of public international law.

Reforming the World Trading System

Ernst-Ulrich Petersmann and James Harrison — 2012-03-22

Author:: Ernst-UlrichPetersmannProfessor of Law, European University Institute, Florence, James Harrison
ISBN:: 9780199282623
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199282623.001.0001
Published in print:: 2005
Published Online:: 2012-03-22

The 1994 agreement establishing the World Trade Organization (WTO) regulates over 95% of world trade amongst 148 member countries. The November 2001 Declaration of the Fourth Ministerial Conference of the WTO in Doha, Quatar, launched the Doha Development Round of multilateral trade negotiations in the WTO on twenty-one topics aimed at far-reaching reforms of the world trading system. On August 1st 2004, the WTO General Council reached agreement on a detailed Doha Work program. This volume provides discussion and policy recommendations by leading WTO negotiators and policy-makers, and analysis by leading economists, political scientists, and trade lawyers on the major subjects of the Doha Round negotiations. Over thirty contributors explore the complexity of the world trading system and of the WTO negotiations for its reform from diverse political, economic, and legal perspectives.

The Reality of International Law

Guy S. Goodwin-Gill and Stefan Talmon — 2012-03-22

Author:: Guy S.Goodwin-GillUniversity of OxfordStefanTalmonUniversity of Tubingen
ISBN:: 9780198268376
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198268376.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

Professor Ian Brownlie, CBE, OC, FBA, DCL held the Chichele Chair of Public International Law at the University of Oxford from 1980 to 1999. Before that he taught at Oxford, Nottingham, and the London School of Economics. He was widely recognized as one of the leading international lawyers of our time, and as well-known and appreciated for his seminal publications and teaching over the years, as for his work as a practitioner. To express their gratitude for his supervision and support, a number of Brownlie's former students from Oxford and London (many now prominent in academic life, foreign affairs, and practice), have written this collection of essays in his honour. The collection is a very personal one, reflecting the close and warm relationship between teacher and students, and results in a wide-ranging overview of the subjects supervised by Brownlie during his more than 40 years as an academic teacher. The collection takes its title from an appreciation of Brownlie's personal contribution to the development of international law, his commitment to which as a system for the regulation of affairs between states has long been characterized by a strong sense of ideals, political and human, but also by an awareness, duly transmitted to his students, of what law is in practice, of what is achievable, and of what remains to be done.

Provisional Measures in International Law

Shabtai Rosenne — 2012-03-22

Author:: Shabtai Rosenne
ISBN:: 9780199268061
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199268061.001.0001
Published in print:: 2004
Published Online:: 2012-03-22

Provisional measures of protection, the international equivalent of an interim injunction, are assuming growing importance in international law. These measures are designed to protect the rights of the parties pending the final decision in a dispute. Since the establishment of the Permanent Court of International Justice in 1921 through its replacement by the International Court of Justice (ICJ) in 1945, the Court's power to indicate provisional measures has been controversial because it has been unclear whether such orders are binding. In 2001 the ICJ set that controversy at rest by deciding that it imposes binding obligations on the parties, and that non-compliance could give rise to an instance of state responsibility and a cause of action. This rule has also been incorporated into the UN Convention on the Law of the Sea, one of the most important law-making conventions adopted in the last fifty years. These changes make a comprehensive re-examination of the law and practice of the ICJ and the International Tribunal for the Law of the Sea (ITLOS) necessary, both from an academic perspective and as a matter of practice and procedure. The book concludes that its work with provisional measures of protection may be the most significant of the ICJ's activities for the settlement of international disputes and the maintenance of international peace and security — the prime objective of the United Nations of which the ICJ is a principal organ.

‘Like Products’ in International Trade Law

Won-Mog Choi — 2012-03-22

Author:: Won-Mog Choi
ISBN:: 9780199260782
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199260782.001.0001
Published in print:: 2003
Published Online:: 2012-03-22

The obligations of international trade law hinge upon the question of what constitute ‘like products’. Trade disputes will often involve an examination of whether the products in question are in competition with one another. The most common term used for this test is to ask whether they are ‘like products’ — that is, to ask whether products are sufficiently similar for consumers to see them as substitutable — and thus whether they are subject to the rules of the World Trade Organization (WTO) and General Agreement on Tariffs and Trade (GATT). The central thesis of this book is that despite the centrality of the principle of ‘like products’ to the WTO, it has not been consistently interpreted, and therefore the risk of discriminatory practice remains. The author, through analyzing legal and economic arguments, sets about defining the concept of ‘like products’ in such a way as to consistently give effect to WTO aims.

The Jurisprudence of the Iran-United States Claims Tribunal

George H. Aldrich — 2012-03-22

Author:: George H. Aldrich
ISBN:: 9780198258056
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198258056.001.0001
Published in print:: 1996
Published Online:: 2012-03-22

The Iran–United States Claims Tribunal is the most important source of international arbitral decisions for at least the past half-century, and its decisions have contributed significantly to the development of international law and the law of international commercial transactions. This book is about the jurisprudence of the Tribunal. It seeks to preserve and to make accessible the substantial body of Awards and Decisions rendered by the Tribunal during the years since it was first established. The Tribunal’s hundreds of Awards and Decisions may be individually consulted (there are 27 volumes so far), but hitherto there has been no detailed analytical guide through its vast published work. This book provides a two-fold service. First, it quotes from the most significant Awards and Decisions at sufficient length so that both their substance and the reasoning of the Tribunal can be understood from access to the present volume alone. Second, it organizes and summarizes the decisions to facilitate finding complete texts relevant to any particular issue.

Judicial Remedies in International Law

Christine D. Gray — 2012-03-22

Author:: Christine D. Gray
ISBN:: 9780198254324
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198254324.001.0001
Published in print:: 1990
Published Online:: 2012-03-22

The question of the consequences of breaches of international law is only now beginning to attract the attention it deserves. This book deals with one aspect of that wider question: judicial remedies in international law.

International Law, Human Rights, and Japanese Law

Yuji Iwasawa — 2012-03-22

Author:: Yuji Iwasawa
ISBN:: 9780198259121
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780198259121.001.0001
Published in print:: 1998
Published Online:: 2012-03-22

The impact international law has had on Japanese law has been substantial, especially in the field of human rights. The author of this volume, one of Japan's leading international lawyers, examines extensively the relationship between his country's domestic rules and regulations, and the numerous international treaties and conventions which it has ratified in recent years. Some changes were made to domestic laws in an attempt to make them conform with these international instruments, but individuals went to the courts to try to obtain further necessary modification. Such direct invocations of international law have met with little success, but the laws concerned are often amended at a later date, due to political pressure. The changes in domestic law that such amendments have wrought have improved the human rights situation in Japan, and have led to a growing interest in international law within that country. The author pays particular attention to the laws governing sexual equality, the legal status of aliens, and the treatment of mental health patients, amongst others. The book details the changes that international law has brought in these areas, despite the skepticism of the Japanese courts regarding the validity of international human rights law as a source of law.

International Law and the Use of Force by States

Ian Brownlie — 2012-03-22

Author:: Ian Brownlie
ISBN:: 9780198251583
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198251583.001.0001
Published in print:: 1963
Published Online:: 2012-03-22

The author of this book has confined himself to the pursuit, on historic lines, of an estimation of the extent of legal prohibition of the use of force by states. He includes the deliberations and findings of political organs of the League of Nations and the United Nations, as well as a study of the quality of prohibition of force, making some indication of relevant corollaries.

The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law

Rosanne Van Alebeek — 2012-03-22

Author:: Rosanne Van Alebeek
ISBN:: 9780199232475
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199232475.001.0001
Published in print:: 2008
Published Online:: 2012-03-22

This book examines the tension between international immunity rules, international human rights law, and international criminal law. The progressive development of a normative system of international human rights law and international criminal law without the simultaneous development of international institutional enforcement mechanisms brought the question of the role of national courts in the application of these norms to the fore and has made the question as to the relation between immunity rules and human rights and international criminal law an immediate one. The tension between the centuries old immunity rules and the relatively recent developments in international human rights law and international criminal law presents itself in two distinct forms. Firstly, it can be questioned whether immunity rules as such are compatible with certain fundamental rights of individuals under international law such as the rights of access to court, the right to a remedy, or the right to effective protection. Secondly, it can be questioned whether immunity rules apply unabridged in proceedings concerning grave human rights abuses. This book sets out to clearly distinguish the different scope and nature of the rule of state immunity, the rule of functional immunity, and the personal immunity of diplomatic agents and heads of state. While strong arguments against certain applications of immunity rules can be derived from international human rights law and international criminal law, this book argues that an unqualified attack on immunity rules risks casting a shadow over all human rights based arguments.

Human Rights Standards and the Free Movement of People Within States

Chaloka Beyani — 2012-03-22

Author:: Chaloka Beyani
ISBN:: 9780198268215
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198268215.001.0001
Published in print:: 2000
Published Online:: 2012-03-22

This book is an exposition of the standards of human rights, which are applicable to the right of freedom of movement and residence of people within states. Written from the standpoint of international law, the book identifies these standards and examines their application to various categories of people, including nationals, non-nationals, minorities, and indigenous groups. The primary motive for writing this book lies in the fact that the vast majority of people move and reside within states. People's ability to exercise civil and political rights as well as economic, social, and cultural rights within states generally depends in large measure on their ability to move about and to choose a place of residence within states. Freedom of movement is therefore crucial to the protection and enjoyment of other rights. As a consequence, the protection of freedom of movement cannot be left exclusively to domestic legal systems because many legal systems form the basis for denying people the right of free movement. Yet the extent to which freedom of movement within states is protected by human rights under international law has not received the attention that its importance deserves. Particular problems arise from the ordinary regulation of freedom of movement, internal exile, the development of free movement zones for nationals and third country nationals in economic and political unions, the need to protect the movement of minorities and indigenous peoples, the movement and location of refugees within states, as well as the legality of derogation from freedom of movement during states of emergency.

Human Rights Law-Making in the United Nations

Theodor Meron — 2012-03-22

Author:: Theodor Meron
ISBN:: 9780198255499
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198255499.001.0001
Published in print:: 1986
Published Online:: 2012-03-22

This book is an examination and critique of the methods employed by the United Nations in adopting human rights instruments. Three of the major instruments — the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Convention on Civil and Political Rights — are selected for detailed study. The author concludes that the present system of law-making is inadequate and points to many examples of unclear provisions and of overlap and conflict within a single instrument or between instruments. In order that this important function of the organized international community — that of protecting human rights — can work effectively, improvements in law-making techniques are necessary, and the author concludes with some suggestions for reforms both of the institutions and of the process itself.

Human Rights in International Law

Theodor Meron — 2012-03-22

Author:: TheodorMeron
ISBN:: 9780198255406
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198255406.001.0001
Published in print:: 1986
Published Online:: 2012-03-22

The object of this book is to provide teachers and students not only with a textbook dealing with the principal topics in the field of human rights, but also with teaching suggestions, syllabuses, bibliographies, and case studies.

Human Rights Conditionality in the EU's International Agreements

Lorand Bartels — 2012-03-22

Author:: Lorand Bartels
ISBN:: 9780199277193
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199277193.001.0001
Published in print:: 2005
Published Online:: 2012-03-22

Since the early 1990s, the European Union has included human rights conditionality clauses in its association agreements and other international trade and cooperation agreements. The purpose of these clauses is to entitle a party to take appropriate measures, including suspension of the agreement, in the event that the other party violates human rights or democratic principles. This book provides an account of the evolution of these clauses, their scope, and their operation, and analyses the EU's responsibility, under international law, to implement these clauses domestically. Based on this examination, it explores the extent to which the EU has the legislative competence to include such clauses in its international agreements, and concludes by considering the implications of ultra vires agreements in EU law. The study offers theoretical insights into aspects of international law as well as EU constitutional and external-relations law. Its practical conclusions have major implications not only for the application of human rights clauses, but also for the EU's international treaty practice more generally.

Human Rights and International Trade

Thomas Cottier, Joost Pauwelyn, and Elisabeth Bürgi — 2012-03-22

Author:: ThomasCottierManaging Director, World Trade Institute, Bern; Professor of European and International Economic Law, University of Bern, SwitzerlandJoostPauwelynAssociate Professor of Law, Duke University School of LawElisabethBürgiattorney at law, researcher, World Trade Institute, Bern and Institute of European and International Economic Law, University of Bern, Switzerland
ISBN:: 9780199285822
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199285822.001.0001
Published in print:: 2005
Published Online:: 2012-03-22

Economic globalization and respect for human rights are both highly topical issues. In theory, more trade should increase economic welfare and protection of human rights should ensure individual dignity. However tension has arisen between these two areas. Does the World Trade Organization prevent countries from providing essential medicines to their people? Is it fair to accord the benefits of trade subject to a clean human rights record? This book examines the theoretical framework of the interaction between the disciplines of international trade law and human rights. The interaction is explored through seven case studies, ranging from freedom of expression and anti-trust rules, to the fight against trade in conflict diamonds and the United Nations' convention on tobacco control.

Human Rights and Humanitarian Norms as Customary Law

Theodor Meron — 2012-03-22

Author:: Theodor Meron
ISBN:: 9780198257455
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198257455.001.0001
Published in print:: 1991
Published Online:: 2012-03-22

Although the protection of human rights has seen a rapid growth in many areas, little attention has been paid in scholarly literature to the place of human rights in the discipline of international law. This book is an attempt to fill that gap. The inquiry is divided into two principal areas of discussion. Firstly, it looks at the relationship between human rights and humanitarian norms and customary law. Secondly, it concerns itself with the relationship between human rights and humanitarian norms on the one hand, and the law of state responsibility on the other. The book examines how contemporary human rights and humanitarian law meshes with the general principles of international law and particularly with the principles governing the international responsibility of States. The book clarifies the status of international human rights and humanitarian norms in public international law, and examines the sources, evidence, and process of the creation of such rights.

The Human Dimension of International Law

Antonio Cassese, Paola Gaeta, and Salvatore Zappalà — 2012-03-22

Author:: Antonio CassesePaolaGaetaProfessor of International Law, University of FlorenceSalvatoreZappalàProfessor of International Law, University of Catania
ISBN:: 9780199232918
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199232918.001.0001
Published in print:: 2008
Published Online:: 2012-03-22

This book collects together the most important papers of Antonio Cassese, the first President of the International Criminal Tribunal for the former Yugoslavia and chairman of the UN Commission of Inquiry into the crimes committed in Darfur. Written over a period of 25 years, from 1974 to 2001, the papers chart the development of Cassese's thought on the central issues that have shaped his life's work: the laws relating to armed conflict, respect of individual rights, and the prosecution of individuals for international crimes. Emerging from the papers is Cassese's vision of the individual and human dignity as the lynchpin of the international legal system, and the need to balance the fact of statehood as an essential feature of modern international society with the protection of individual rights. In a new paper written especially for the collection, Cassese looks back over the development of his understanding of international law and presents his current view of the issues discussed throughout the volume. The volume also features an exhaustive bibliography of Cassese's publications, and biographical notes from Cassese's colleagues. By gathering together the most important writings of one of the pre-eminent figures in contemporary international criminal justice, this collection provides not only Cassese's thought, but an insight into some of the key developments in international law over the last quarter of the 20th century.

Henry's Wars and Shakespeare's Laws

Theodor Meron — 2012-03-22

Author:: Theodor Meron
ISBN:: 9780198258117
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198258117.001.0001
Published in print:: 1993
Published Online:: 2012-03-22

Shakespeare's Henry V has traditionally been acclaimed for its impressive depiction of the psychological and political impact of warfare, and it remains one of the most widely-discussed plays in the canon. This book uses rare medieval ordinances and other medieval and Renaissance historical and legal sources to provide challenging new contexts for Shakespeare's famous play. The result is a gripping account of how Henry V and other ‘Histories’ dramatically articulated complex medieval and Renaissance attitudes to warfare and the conduct of nations and individuals in time of war. The book uses the play and the campaign itself as a frame for the examination of the medieval laws of war, and examines stability and change in attitudes towards the laws of war.

Governmental Illegitimacy in International Law

Brad Roth — 2012-03-22

Author:: Brad Roth
ISBN:: 9780199243013
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199243013.001.0001
Published in print:: 2000
Published Online:: 2012-03-22

International reaction to the 1991–4 Haitian crisis is only the most prominent in a series of events that suggest a norm of governmental illegitimacy is emerging to challenge more traditional notions of state sovereignty. This challenge has dramatic implications for two fundamental legal strictures: that against the use or threat of force against a state's political independence, and that against interference in matters ‘essentially’ within a state's domestic jurisdiction. Yet although human rights advocates have begun to speak of state sovereignty as an ‘anachronism’, with some expansively proclaiming the emergence of an international ‘right to democratic governance’, international law literature lacks systematic treatment of governmental illegitimacy. This book seeks to specify the international law of collective non-recognition of governments, so as to enable legal evaluation of cases in which competing factions assert governmental authority. It subjects the recognition controversies of the United Nations era to a systematic examination, informed by theoretical and comparative perspectives on governmental legitimacy. The inquiry establishes that the category of ‘illegitimate government’ now occupies a place in international law, with significant consequences for the legality of intervention in certain instances. The principle of popular sovereignty, hitherto vague and ambiguous, has acquired sufficient determinacy to serve, in some circumstances, as a basis for denial of legal recognition to putative governments. This development does not imply, however, the emergence in international law of a meaningful norm of ‘democratic governance’, nor would such a norm serve the purposes of the scheme of sovereign equality of states embodied in the United Nations Charter.

Governing High Seas Fisheries

Olav Schram Stokke — 2012-03-22

Author:: Olav SchramStokkeFridtjof Nansen Institute
ISBN:: 9780198299493
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198299493.001.0001
Published in print:: 2001
Published Online:: 2012-03-22

The legal and political difficulties of managing fish stocks that straddle both national waters and the high seas were not abolished by the introduction of exclusive economic zones. Here, chapters explain the wave of bitter disputes that arose in the 1990s over such straddling stocks. They show how regional responses to those challenges shaped the negotiation of a 1995 UN Fish Stocks Agreement and helped strengthen the global high seas fisheries regime. Keen attention is paid to whether and how evolving regimes meet the scientific, regulatory, and compliance-related tasks of effective management — and the significance of regime interplay in this regard. Certain developments in international fisheries law, particularly crucial to effective management of high seas fisheries, are examined: reconceptualisation of the freedom of the high seas; legal measures to control the harvesting of vessels flying flags-of-convenience; the dispute settlement apparatus; and emerging procedures for compliance-control activities by others than the flag state. These global developments are related to six regional case studies featuring management of straddling stocks in the Grand Banks of Canada, the Southern Ocean, the Doughnut Hole of the Bering Sea, the Peanut Hole of the Okhotsk Sea, the Loophole of the Barents Sea, and the Banana Hole of the Northeast Atlantic.

Foreign Affairs in English Courts

F. A. Mann — 2012-03-22

Author:: F. A. Mann
ISBN:: 9780198255642
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198255642.001.0001
Published in print:: 1986
Published Online:: 2012-03-22

This book describes and analyses the attitudes and techniques which English judges adopt or ought to adopt when confronted with problems arising from the conduct of foreign policy by the Executive. Its central theme, therefore, is the relationship of the Executive and the judiciary in matters involving foreign relations rather than the formulation of rules of substantive law, whether municipal or international law.

Fairness in International Law and Institutions

Thomas M. Franck — 2012-03-22

Author:: Thomas M. Franck
ISBN:: 9780198267850
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198267850.001.0001
Published in print:: 1998
Published Online:: 2012-03-22

This book offers a compelling view of the future of international legal reasoning and legal theory. It offers a critical analysis of the prescriptive norms and institutions of modern international law and argues that international law has the capacity to advance, in practice, the abstract social values shared by the community of states and persons.

Differential Treatment in International Environmental Law

Lavanya Rajamani — 2012-03-22

Author:: Lavanya Rajamani
ISBN:: 9780199280704
Publisher:: Oxford University Press
Subjects:: Law, Environmental and Energy Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199280704.001.0001
Published in print:: 2006
Published Online:: 2012-03-22

The history of international environmental dialogue is a history of conflict between developing and industrial countries encompassing the framework, nature, and agenda of international environmental law. The conflict is focused on who should take responsibility, in what measure, and under what conditions to contain global environmental degradation. In the face of inequality in resources and contributions to global environmental degradation, sovereign states have crafted a burden sharing arrangement rooted in differential treatment. Differential treatment refers to the use of norms that provide for different, more advantageous, treatment to some states. Real differences exist between states, and the norms of differential treatment recognize and respond to these differences by instituting different standards for different states or groups of states. This book explores the value of differential treatment in integrating developing countries into international environmental regimes. It systematically categorizes and analyses the terms of integration, respecting differential treatment across new generation environmental treaties. It ferrets out the philosophical and practical bases for differential treatment in environmental treaties, and creates a framework within which differential treatment can be assessed. It suggests certain boundaries to differential treatment in international environmental law, and explores in detail the reach of differential treatment in the climate regime. The conflict between industrial and developing countries has thus far significantly impaired the ambition of the international environmental agenda. The relevance of this book lies in its ability to provide a principled framework within which the conflict between industrial and developing countries in the international environmental realm can be examined and resolved.

Corporations and Criminal Responsibility

Celia Wells — 2012-03-22

Author:: Celia Wells
ISBN:: 9780198267935
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780198267935.001.0001
Published in print:: 2001
Published Online:: 2012-03-22

Contemporary concern about technological hazards posed by business enterprises has intensified interest in the criminality of corporations. Incorporating ideas from a wide range of literature, this book argues that there is no magic answer to corporate power, to issues of personal safety and their inter-relationship with criminal law and justice. The attention paid to corporate criminal liability by courts, legislatures, law reform bodies and international organizations has increased markedly in the past decade. As in the first edition, the book takes what might be called a panoptic approach to the subject. Corporations and their susceptibility to criminal law are examined from sociological, psychological, philosophical, and organizational perspectives as the book progresses. This edition has been revised and updated to take account of the burgeoning scholarly literature. Detailed analysis of judicial and legislative movements in England and Wales, in other national jurisdictions and at the level of international organizations follows. Two new chapters, on corporate manslaughter and on comparative and international responses to corporate crime, accommodate these changes. The book combines legal analysis and discussion of law reform debates with a theoretical account of the relationship between legal institutions and the role of risk and blame in shaping criminal law and the practices of the criminal justice system.

Complementary Protection in International Refugee Law

Jane McAdam — 2012-03-22

Author:: Jane McAdam
ISBN:: 9780199203062
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199203062.001.0001
Published in print:: 2007
Published Online:: 2012-03-22

This book considers the legal obligations countries have to people who do not meet the legal definition of a ‘refugee’, but who have been forcibly displaced from their homes. This is known as ‘complementary protection’, because it complements the central international instrument in this area, the 1951 Refugee Convention. Chapter 1 identifies pre-1951 examples of complementary protection, demonstrating how the content of the status afforded to extended categories of refugees was historically the same as that granted to ‘legal’ refugees. It traces unsuccessful attempts at the international and European levels to codify a system of complementary protection, prior to the EU's adoption of the Qualification Directive in 2004 and international support for an ExCom Conclusion in 2005. The Qualification Directive, examined in Chapter 2, represents the first supranational codification of complementary protection, but is hampered by a hierarchical conceptualization of protection that grants a lesser status to beneficiaries of ‘subsidiary protection’ vis-à-vis Convention refugees. Chapters 3 to 5 examine a number of human rights treaties (CAT, ECHR, ICCPR, and CRC) to identify provisions that may give rise to a claim for international protection. Chapter 6 illustrates why all persons protected by the principle of non-refoulement should be entitled to the same legal status as refugees, demonstrating the Refugee Convention's role in providing a rights blueprint for beneficiaries of complementary protection.

World Trade Law after Neoliberalism

Andrew Lang — 2012-01-19

Author:: Andrew Lang
ISBN:: 9780199592647
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199592647.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

The rise of economic liberalism in the latter stages of the 20th century coincided with a fundamental transformation of international economic governance, especially through the law of the World Trade Organization. This book provides a new account of this transformation, and considers its enduring implications for international law. Against the commonly-held idea that ‘neoliberal’ policy prescriptions were encoded into WTO law, the book argues that the last decades of the 20th century saw a reinvention of the international trade regime, and a reconstitution of its internal structures of knowledge. In addition, the book explores the way that resistance to economic liberalism was expressed and articulated over the same period in other areas of international law, most prominently international human rights law. It considers the promise and limitations of this form of ‘inter-regime’ contestation, arguing that measures to ensure greater collaboration and cooperation between regimes may fail in their objectives if they are not accompanied by a simultaneous destabilization of each regime's structures of knowledge and characteristic features. With that in mind, the book contributes to a full and productive contestation of the nature and purpose of global economic governance.

Sovereign Equality and Moral Disagreement

Brad R. Roth — 2012-01-19

Author:: Brad R. Roth
ISBN:: 9780195342666
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780195342666.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

The United Nations system's foundational principle of sovereign equality reflects persistent disagreement within its membership as to what constitutes a legitimate and just internal public order. While the boundaries of the system's pluralism have narrowed progressively in the course of the United Nations era, accommodation of diversity in modes of internal political organization remains a durable theme of the international order. This accommodation of diversity underlies the international system's commitment to preserve states' territorial integrity and political independence, often at the expense of other values. For those who impute to the international legal order an inherent purpose to establish a universal justice that transcends the boundaries of territorial communities, the legal prerogatives associated with state sovereignty appear as impediments to the global advance of legality. That view, however, neglects the danger of allowing powerful states to invoke universal principles to rationalize unilateral (and often self-serving) impositions upon weak states. Though frequently counterintuitive, limitations on cross-border exercises of power are supported by substantial moral and political considerations, and are properly overridden only in a limited range of cases. This book accomplishes two tasks. One is to construct a unifying account of the manifestations of the principle of sovereign equality in international legal norms governing a range of subject areas, from foundational matters such as the recognition of states and governments to controversial questions such as legal authority for extraterritorial criminal prosecution and armed intervention. The other is to defend the principle as a morally sound response to persistent and profound disagreement within the international community as to the requirements of legitimate and just internal public order.

Securing Human Rights?

Bardo Fassbender — 2012-01-19

Author:: BardoFassbenderProfessor of International Law at the Bundeswehr University Munich, Germany
ISBN:: 9780199641499
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199641499.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

The contributions to this book, which are based on lectures delivered at the Academy of European Law in Florence, take a closer look at the two sides of the United Nations Security Council's involvement in human rights — its efforts to promote and enforce human rights on the one hand, and the imperiling of those same rights by action of the Council meant to maintain or restore international peace and security, on the other hand. The book offers a collection of individual views and appraisals, presented by leading experts in international law, of how the Council has dealt with human rights issues, especially in the post-Cold War phase of its life, and of possible avenues for improvement. The opening chapter analyses how the role of the Council in the promotion and protection of human rights has developed since 1945: an organ not endowed with any specific powers in the field of human rights became the ‘centre-piece of the human rights protection system’ of the international community. Another chapter focuses on the legal issues of the Council's actions in favour of human rights. In particular, the legal problems of a qualification of human rights violations as a threat to international peace are addressed. Procedural questions take centre stage in a contribution on the role for human rights in the decision-making process of the Security Council. The following chapters then turn to a practice of the Council which has been sharply criticized because of its negative effects on human rights — ‘targeted sanctions’ imposed on individuals in the form of travel bans, arms embargoes, and the freezing of financial assets. In no other area of its work has the Security Council been so vulnerable to attack by human rights activists and lawyers. In particular, the enforcement of targeted sanctions in Europe and its supervision by European courts is closely analysed.

The Right to Health in International Law

John Tobin — 2012-01-19

Author:: John Tobin
ISBN:: 9780199603299
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199603299.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

The link between health and human rights has been recognized for many years. But the increasing visibility of the right to health in international law has been a distinct feature in social and policy debates over the last decade. It has been embraced to varying degrees by actors within civil society, academics, health professionals, lawyers and courts in several jurisdictions, policy makers and international institutions, as a tool to address health inequalities at the local and global level in matters ranging from access to medicines and the availability of affordable health care services to sexual and reproductive health and the availability of abortion services. But it has equally been the subject of derision and scorn by its opponents who have described it as being without foundation, nebulous and incapable of implementation. This book seeks to offer a comprehensive discussion of the status and meaning of the right to health in international law. It traces the history of this right to reveal its nexus with public health and the long standing recognition that a state has a responsibility to attend to the health needs of its population. It offers a theoretical account of its conceptual foundations which challenges the position held by many philosophers that health is undeserving of the status of a human right. It develops an interpretative methodology to provide a persuasive account as to the meaning of the right to health and it applies this methodology to describe the nature of obligations imposed upon States. This process reveals an understanding of the right to health that, while challenging, remains practical and capable of guiding States that are genuinely committed to addressing the health needs of their population.

The Responsibility to Protect

Jared Genser, Irwin Cotler, Desmond Tutu, and Vaclav Havel — 2012-01-19

Author:: Jared Genser, Irwin Cotler, Desmond Tutu, Vaclav Havel
ISBN:: 9780199797769
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199797769.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

This book provides an overview on how the “responsibility to protect,” (RtoP) a contemporary principle of international law, has developed and analyze how best to apply it to current and future humanitarian crises. The “responsibility to protect” is a doctrine unanimously adopted by the UN World Summit in 2005, which says that all states have an obligation to protect their own citizens from mass atrocities, which includes genocide, war crimes, crimes against humanity, and ethnic cleansing. Its adoption and application has generated a passionate debate in law schools, professional organizations, media, and within the UN system. To present a full picture of where the doctrine now stands and where it could go in the future, a global team of contributors with diverse backgrounds and differing viewpoints balance the pro-RtoP chapters with more skeptical arguments from agency staff and scholars with long experience in addressing mass atrocities. The book presents authoritative analyses which move beyond theory to demonstrate how RtoP has worked on the ground and should work if applied to other crises.

On the Frontlines

Fionnuala Ni Aolain, Dina Francesca Haynes, and Naomi Cahn — 2012-01-19

Author:: Fionnuala Ni Aolain, Dina Francesca Haynes, Naomi Cahn
ISBN:: 9780195396645
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780195396645.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

Gender oppression has been a feature of war and conflict throughout human history, yet until fairly recently, little attention has been devoted to addressing the consequences of violence and discrimination experienced by women in post-conflict states. Thankfully, that is changing. Today, in a variety of post-conflict settings—the former Yugoslavia, Afghanistan, Colombia, Northern Ireland—international advocates for women’s rights have focused bringing issues of sexual violence, discrimination, and exclusion into peace-making processes. This book considers such policies in a range of cases and assesses the extent to which they have had success in improving women’s lives. It argues that there has been too little success, and that this is in part a product of a focus on schematic policies like straightforward political incorporation rather than a broader and deeper attempt to alter the cultures and societies that are at the root of much of the violence and exclusions experienced by women. The book contends that this broader approach would not just benefit women, however. Gender mainstreaming and increased gender equality has a direct correlation with state stability and functions to preclude further conflict. If we are to have any success in stabilizing failing states, gender needs to move to fore of our efforts. With this in mind, the book examines the efforts of transnational organizations, states, and civil society in multiple jurisdictions to place gender at the forefront of all post-conflict processes. The book offers concrete analysis and practical solutions to ensuring gender centrality in all aspects of peace making and peace enforcement.

International Law and Domestic Legal Systems

Dinah Shelton — 2012-01-19

Author:: DinahSheltonManatt/Ahn Professor of International Law, George Washington University Law School, Washington DC
ISBN:: 9780199694907
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199694907.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

Different countries incorporate and interpret international law in different ways. This book provides a systematic analysis of the domestic constitutional regime of over two dozen countries, setting out the status accorded to international law in those countries and its normative weight, as well as problems relating to its implementation. This country-by-country comparison allows the book to examine how the international legal order and domestic legal systems interact and influence each other. Through a series of chapters on the role of international law in twenty-seven countries throughout the world, it shows a growing tendency towards greater democratic participation in treaty-making coupled with a significant utilization of informal agreements that by-pass such participation, as well as a role for non-binding normative instruments as persuasive authority in domestic judicial decision-making. The chapters suggest a stronger attachment to international law in legal systems that have survived a period of repression, resulting in many cases in a higher normative status for international human rights instruments in those states. The impact of the European Union on the constitutional order of its member states is also examined.

International Harmonization of Economic Regulation

Junji Nakagawa — 2012-01-19

Author:: Junji Nakagawa
ISBN:: 9780199604661
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199604661.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

International harmonization of economic regulation is an attempt to eliminate, or at least reduce, regulatory diversity in economic policy areas where states have autonomous regulatory jurisdiction. In some regulatory areas, its history dates back to the late 19th century, but harmonization efforts have accelerated and intensified particularly since the 1980s. This book is a first attempt to comprehend the phenomenon of international harmonization of economic regulation in its entirety by analyzing its causes and backgrounds as well as negotiating processes involved in a broad range of areas, and by elucidating the impact of harmonization on domestic laws and global economic governance. Through its analysis, this book emphasizes the existence of dynamic regulatory structures and processes of global economic governance consisting of different actors (notably, international harmonizing bodies, states and the private sector) and the interconnectedness of international rule-making and domestic implementation. It also highlights non-legislative (soft law) and non‐juridical aspects (collegial implementation) of the drafting and implementation of harmonized regulation. It thus provides new empirical and theoretical perspectives for understanding international economic law and global economic governance. This book will be of interest to scholars and students of international economic law and international relations, as well as government officials and corporate lawyers dealing with economic regulation in a wide range of areas.

Humanity's Law

Ruti G. Teitel — 2012-01-19

Author:: Ruti G. Teitel
ISBN:: 9780195370911
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780195370911.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

Post-Cold War history has witnessed a transformation in the relationship of law to violence in global politics. The normative foundations of the international legal order have been shifting their emphasis from state security to human security: the security of persons and peoples. Increasingly, courts, tribunals, other international bodies, and political actors draw from this new framework to assess the rights and wrongs of conflict; determine whether and how to intervene; and impose accountability and responsibility on state and non-state actors. The result of this shift is the law of humanity — a framework that spans the law of war, international human-rights law, and international criminal justice. The author explores the humanity-law phenomenon by looking to its historical roots, its contemporary tendencies, and its effect on the discourse of international relations. Humanity law’s framework is most evident in the jurisprudence of the tribunals — international, regional and domestic — adjudicating disputes often spanning issues of internal and international conflict and security. Yet because most international legal scholarship focuses on individual regimes or tribunals, it is easy to miss the evolution of a jurisprudence connecting the rulings of diverse tribunals and institutions. This jurisprudence tends to expand rights and responsibilities to encompass wider circles of conduct; sweep in additional actors within conflicts; increase the legal responsibilities of states, even for the behavior of non-state actors; and exhibit less deference to the traditional sovereign prerogatives of states, where doing so would interfere with the overriding goal of protecting persons and peoples.

Formalism and the Sources of International Law

Jean d'Aspremont — 2012-01-19

Author:: Jean d'Aspremont
ISBN:: 9780199696314
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199696314.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

This book revisits the theory of the sources of international law from the perspective of formalism. It critically analyzes the virtues of formalism, construed as a theory of law ascertainment, as a means of distinguishing between law and non-law. The theory of formalism is re-evaluated against the backdrop of the growing acceptance by international legal theorists of the blurring of the lines between law and non-law. At the same time, the book acknowledges that much international normative activity nowadays takes place outside the ambit of traditional international law and that only a limited part of the exercise of public authority at the international level results in the creation of international legal rules. The theory of ascertainment that the book puts forward attempts to dispel some of the illusions of formalism that accompany the delimitation of customary international law. It also sheds light on the tendency of scholars, theorists, and advocates to deformalize the identification of international legal rules with a view to expanding international law. The book seeks to revitalize and refresh the formal identification of rules by engaging with some tenets of the postmodern critique of formalism. As a result, the book not only grapples with the practice of law-making at the international level, but it also offers broad theoretical insights on international law, dealing with the main schools of thought in legal theory (positivism, naturalism, legal realism, policy-oriented jurisprudence, and postmodernism).

Comparative Law as Transnational Law

Russel A. Miller and Peer C. Zumbansen — 2012-01-19

Author:: Russel A.MillerPeer C.Zumbansen
ISBN:: 9780199795208
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199795208.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

This book assembles the works of scholars from around the world, forming a contextual demonstration of the increasing encounters and tensions among legal cultures. In recognizing the lack of consensus on how to define transnational law, the text includes carefully selected works that originally appeared in the German Law Journal in order to help show the challenges of defining transnational law, and to help with the appreciation of the differing approaches towards it. Some, for example, maintain that the processes of transnationalization has created a space for a new, discrete corpus of law—a field in its own right that is the equal of public international law or conflict of laws. Others understand the perceived transnational phenomena to be illustrations of an emerging legal culture that no longer fits the traditional distinction between national and international jurisdictions. In offering different approaches to such an understanding of transnational law, the chapters also bring out the important consequences of a more global outlook in legal scholarship, legal practice, and legal education.

Aboriginal Title

P.G. McHugh — 2012-01-19

Author:: P.G. McHugh
ISBN:: 9780199699414
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Legal History
DOI:: 10.1093/acprof:oso/9780199699414.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

Aboriginal title was one of the most remarkable and controversial legal developments in the common law world of the late-twentieth century. The common law doctrine gave sudden substance to the tribes' claims to justiciable property rights over their traditional lands, catapulting these up the national agenda and jolting them out of a seemingly embedded culture of governmental inattention. In a series of breakthrough cases national courts adopted the argument developed first in western Canada, and then New Zealand and Australia by a handful of influential scholars. Almost overnight these cases changed the political leverage of indigenous peoples. By the beginning of the millennium the doctrine had spread to Malaysia, Belize, and southern Africa, and had a profound impact upon the rapid development of international law of indigenous peoples' rights. This book is a history of this doctrine and the explosion of intellectual activity arising from this inrush of legalism into the tribes' relations with the Anglo settler state. The author of this book was one of the key scholars involved from the doctrine's appearance in the early 1980s as an exhortation to the courts, and a figure who has both witnessed and contributed to its acceptance and subsequent pattern of development. The book looks critically at the early conceptualisation of the doctrine, its doctrinal elaboration and evisceration in Canada and Australia — the busiest jurisdictions — through a proprietary paradigm located primarily (and constrictively) inside adjudicative processes. This book also considers the issues of inter-disciplinary thought and practice (for anthropologists and historians especially) arising from national legal systems' recognition of aboriginal land rights, including the emergent and associated themes of self-determination that surfaced more overtly during the 1990s and after. The doctrine made modern legal history, and it is still making it.

State Responsibility for International Terrorism

Kimberley N. Trapp — 2011-09-22

Author:: Kimberley N. Trapp
ISBN:: 9780199592999
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199592999.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

The rules of State responsibility have an important but under-utilised role to play in the terrorism context. They determine both whether a breach of primary obligations has occurred, through the rules of attribution, and the consequences which flow from that breach, including the possible adoption of responsive measures by injured States. This book explores the substantive international legal obligations and rules of State responsibility applicable to international terrorism and examines the problems and prospects for effectively holding States responsible for internationally wrongful acts related to terrorism. In particular, it analyses the way in which the implementation of State responsibility for international terrorism may be affected by the self-determination debate and any applicable lex specialis (including the jus in bello) and sub-systems of international law (including the WTO), as well as the interaction between determinations of individual criminal responsibility and the implementation of State responsibility. The international community has responded to the threat of international terrorism through both a security/jus ad bellum paradigm and by creating an international criminal law framework to address the conduct of non-State terrorist actors. The secondary rules of State responsibility analysed in this book cut across both approaches as they apply whether States breach their primary obligations relating to terrorism through participation in or a failure to prevent or punish terrorism. While this book identifies a number of problems in implementing State responsibility for international terrorism, it also highlights the prospects for the rules of State responsibility to make a crucial contribution to maintaining respect for obligations which lie at the very foundations of the contemporary international legal order, and to restoring the relationships between States if those obligations are breached.

Piracy and Armed Robbery at Sea

Anna Petrig and Robin Geiß — 2011-09-22

Author:: Anna Petrig, Robin Geiß
ISBN:: 9780199609529
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199609529.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

Since 2008 increasing pirate activities in Somalia, the Gulf of Aden, and the Indian Ocean have once again drawn the international community's attention to piracy and armed robbery at sea. States are resolved to repress these impediments to the free flow of trade and navigation. To this end, a number of multinational counter-piracy missions have been deployed to the region. This book describes the enforcement powers that States may rely upon in their quest to repress piracy in the larger Gulf of Aden region. The piracy rules of the United Nations Convention on the Law of the Sea (UNCLOS) and the legal safeguards applicable to maritime interception operations are scrutinized before the analysis turns to the criminal prosecution of pirates and armed robbers at sea. The discussion includes so-called shiprider agreements, the transfers of alleged offenders to regional states, the jurisdictional bases for prosecuting pirates, and the feasibility of an international(ized) venue for their trial. In addressing a range of relevant issues, this book presents a detailed and comprehensive up-to-date analysis of the legal issues pertaining to the repression of piracy and armed robbery at sea and assesses whether the currently existing legal regime is still adequate to effectively counter piracy in the 21st century.

The Optional Protocol to the UN Convention Against Torture

Rachel Murray, Elina Steinerte, Malcolm Evans, and Antenor Hallo de Wolf — 2011-09-22

Author:: Rachel Murray, Elina Steinerte, Malcolm Evans, Antenor Hallo de Wolf
ISBN:: 9780199602193
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199602193.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

The Optional Protocol to the UN Convention Against Torture (OPCAT) establishes an independent international monitoring committee (SPT) which itself will visit states and places where persons are deprived of their liberty. It also requires states to set up independent national bodies to visit places of detention. This book, drawing upon events held and interviews with governments, civil society, members of UN treaty bodies, national visiting bodies and others, identifies key factors that have shaped the operation of these visiting bodies since OPCAT came into force in 2006. It looks in detail at the background to the adoption of the Protocol, as well as how the international committee, the SPT, has carried out its mandate in its first few years. It examines the range of places of detention that could be visited by these bodies, and the expectations placed on the national visiting bodies themselves. The book also places the OPCAT within the broader system of torture prevention in the UN and elsewhere and identifies a range of trends arising from the different geographical regions. As well as providing an insight into its work, this detailed examination of OPCAT also provides valuable lessons relevant for other new human rights treaties such as the UN Convention on the Rights of Persons with Disabilities and the Convention on Enforced Disappearances which have similar provisions concerning national mechanisms.

The Nuremberg Military Tribunals and the Origins of International Criminal Law

Kevin Jon Heller — 2011-09-22

Author:: Kevin Jon Heller
ISBN:: 9780199554317
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199554317.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This book provides a comprehensive legal analysis of the twelve war crimes trials held in the American zone of occupation between 1946 and 1949, collectively known as the Nuremberg Military Tribunals (NMTs). The judgments the NMTs produced have played a critical role in the development of international criminal law, particularly in terms of how courts currently understand war crimes, crimes against humanity, and the crime of aggression. The trials are also of tremendous historical importance, because they provide a far more comprehensive picture of Nazi atrocities than their more famous predecessor, the International Military Tribunal at Nuremberg (IMT). The IMT focused exclusively on the ‘major war criminals’ — the Goerings, the Hesses, the Speers. The NMTs, by contrast, prosecuted doctors, lawyers, judges, industrialists, bankers — the private citizens and lower-level functionaries whose willingness to take part in the destruction of millions of innocents manifested what Hannah Arendt famously called ‘the banality of evil’. The book is divided into five sections. The first section traces the evolution of the twelve NMT trials. The second section discusses the law, procedure, and rules of evidence applied by the tribunals, with a focus on the important differences between Law No. 10 and the Nuremberg Charter. The third section, the heart of the book, provides a systematic analysis of the tribunals' jurisprudence. It covers Law No. 10's core crimes — crimes against peace, war crimes, and crimes against humanity — as well as the crimes of conspiracy and membership in a criminal organization. The fourth section then examines the modes of participation and defences that the tribunals recognized. The final section deals with sentencing, the aftermath of the trials, and their historical legacy.

The Making of International Criminal Justice

Theodor Meron — 2011-09-22

Author:: Theodor Meron
ISBN:: 9780199608935
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199608935.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

There has been a quiet revolution over the course of the past quarter century in the prosecution of individuals for war crimes before international courts. Until recently, and with a few notable exceptions in the wake of World War II, violations of the laws of war and international humanitarian law were addressed primarily as claims between states. However, this approach has changed radically in just the last twenty years, as the international community has increasingly accepted the idea of individual criminal responsibility for violations of international humanitarian law. The International Criminal Tribunals for the former Yugoslavia and Rwanda have played a key role in this transformation and, as the trailblazers for a growing number of new international or hybrid criminal courts, in establishing the field of international criminal justice and encouraging the national prosecution of war crimes. Understanding the Tribunals' origins, their ground-breaking jurisprudence, and how they have addressed critical legal and practical challenges is essential to understanding both the revolution that has occurred over the past twenty years and how international criminal law will change and grow in the years ahead. As a leading scholar on humanitarian law, past President of the International Criminal Tribunal for the former Yugoslavia, and Appeals Judge for both the Yugoslavia and Rwanda Tribunals, Theodor Meron has observed and influenced the development of international criminal law as it has evolved from a mostly academic exercise to a cornerstone of the new international legal order. In this collection of speeches delivered during his first decade on the bench, the book offers an insightful overview of the foundations of international criminal law as well as an unique, insider's perspective on the challenges faced by international criminal tribunals, the creation of a corpus of substantive and procedural law regarding everything from sentencing and self-representation to the law of genocide and the protection of prisoners of war, the contributions of other international courts, and the responsibilities of international jurists.

The Legacy of the International Criminal Tribunal for the Former Yugoslavia

Bert Swart, Alexander Zahar, and Göran Sluiter — 2011-09-22

Author:: BertSwartProfessor of International Criminal Law, Amsterdam Centre for International Law, University of AmsterdamAlexanderZaharLecturer in International and Criminal Law, Griffith Law School, Griffith University, Australiahttp://www.law.mq.edu.au/html/staff/azahar.htmGöranSluiterProfessor of International Criminal Law, Amsterdam Centre for International Law, University of Amsterdamhttp://home.medewerker.uva.nl/g.k.sluiter/
ISBN:: 9780199573417
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199573417.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

The International Criminal Tribunal for the Former Yugoslavia (ICTY), which is the focus of this book, was established in 1993 and is due to complete its trials by 2011. Easily the most credible and prodigious of the international tribunals established in this period, the ICTY is by far the most important source of case law on international criminal law and will most likely serve as an important frame of reference for the International Criminal Court and other courts dealing with international crimes, including national courts. The publication of the present book, in 2011, coincides with the year of cessation of trial activity at the ICTY. The book's purpose is to mark this significant milestone in international law with a series of in-depth, critical, reflections on the institution's legacy by eminent scholars and practitioners. Seventeen chapters analyse the main features of the ICTY's work, in an unprecedented examination of the institution's legitimacy, core principles, methodologies, unstated assumptions, political circumstances, and impact — and indeed, its legacy. The chapters tackle the problem of discussing the legacy of such a complex institution by carving out the most important component themes that have challenged the institution and presenting the results of research.

The Law of Treaties Beyond the Vienna Convention

Enzo Cannizzaro — 2011-09-22

Author:: EnzoCannizzaroProfessor of international Law, University of Roma "La Sapienza"http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=316
ISBN:: 9780199588916
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199588916.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This book offers an analysis of the law of treaties as it emerges from the interplay between the 1969 Vienna Convention on the Law of Treaties and customary international law. It revisits the basic concepts underlying the provisions of the Vienna Convention, so as to determine the actual state of the law and its foreseeable development. In doing so, it examines some of the most controversial aspects of the law of treaties. The book first explores the influence exerted by the Vienna Convention on pre-existing customary law. Certain rules of the Convention which, at the time of its adoption, appeared to fall within the realm of progressive development, can now be regarded as customary international rules. Conversely, a number of provisions of the Convention, in particular those which have been the subject of subsequent codification work by the International Law Commission, have become obsolete. It then examines the impact exerted by the Vienna Convention on the development of other fields of international law, such as the law of international responsibility and the law of international organizations. The last section of the book is devoted to cross-cutting issues, with particular reference to the notion of jus cogens — a concept first used in the Vienna Convention in connection with the problem of the validity of treaties and which, afterwards, has acquired a legal significance going well beyond the Convention.

Interpreting the Nuclear Non-Proliferation Treaty

Daniel H. Joyner — 2011-09-22

Author:: Daniel H. Joyner
ISBN:: 9780199227358
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199227358.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

The 1968 Nuclear Non-proliferation Treaty has proven the most complicated and controversial of all arms control treaties, both in principle and in practice. Statements of nuclear-weapon States from the Cold War to the present, led by the United States, show a disproportionate prioritization of the non-proliferation pillar of the Treaty, and an unwarranted underprioritization of the civilian energy development and disarmament pillars of the treaty. This book argues that the way in which nuclear-weapon States have interpreted the Treaty has laid the legal foundation for a number of policies related to trade in civilian nuclear energy technologies and nuclear weapons disarmament. These policies circumscribe the rights of non-nuclear-weapon States under Article IV of the Treaty by imposing conditions on the supply of civilian nuclear technologies. They also provide for the renewal and maintenance, and in some cases further development, of the nuclear weapons arsenals of nuclear-weapon States. The book provides a legal analysis of this trend in treaty interpretation by nuclear-weapon States and the policies for which it has provided legal justification. It argues, through a close and systematic examination of the Treaty by reference to the rules of treaty interpretation found in the 1969 Vienna Convention on the Law of Treaties, that this disproportionate prioritization of the non-proliferation pillar of the Treaty leads to erroneous legal interpretations in light of the original balance of principles underlying the Treaty, prejudicing the legitimate legal interests of non-nuclear-weapon States.

International Humanitarian Law and International Human Rights Law

Orna Ben-Naftali — 2011-09-22

Author:: OrnaBen-NaftaliProfessor of International Law, The Law School, The College of Management Academic Studies, Israelhttp://www.colman.ac.il/English/AcademicUnits/Law/Faculty/OrnaBenNaftali/Pages/default.aspx
ISBN:: 9780191001604
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780191001604.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

The idea that international humanitarian law (IHL) and international human rights law (IHRL) are complementary, rather than mutually exclusive regimes generated a paradigmatic shift in the international legal discourse. The reconciliation was driven by a humanistic ethos and its purpose was to offer greater protection of the rights to life, liberty, and dignity of all individuals under all circumstances. The complementarity of both regimes currently enjoys the status of the new orthodoxy and simultaneously invites critical reflection. The chapters in this book accept the invitation, offering diverse assessments of the merits of taking human rights to the battlefields of the 21st century. The book comprises three parts: Part I focuses on the paradigmatic (security based ‘armed conflict’ vs. human rights centered ‘law enforcement’ paradigms) and the normative complexities of the interaction between both regimes in the ‘fight against terror’ and in other, allegedly new, types of wars. Part II discusses the interplay between IHRL and IHL in the context of three specific regimes: belligerent occupation, the European Court of Human Rights, and the protection of cultural heritage. Part III explores the potential fusion of IHL and IHRL into a new paradigm in two areas: post-bellum accountability and compensation to victims of war crimes. The range of issues, multitude of competing norms and narratives, and shifting paradigms explored in this collection, converse with each other. This conversation mirrors the process through which international law — paying deference to political realities while simultaneously seeking to transcend them — charts new pathways to advance its humanizing project.

Extraterritorial Application of Human Rights Treaties

Marko Milanovic — 2011-09-22

Author:: Marko Milanovic
ISBN:: 9780199696208
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199696208.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

Questions as to when a state owes obligations under a human rights treaty towards an individual located outside its territory are being brought more and more frequently before both international and domestic courts. Victims of aerial bombardment, inhabitants of territories under military occupation, deposed dictators, suspected terrorists detained in Guantanamo by the United States, and the family of a former KGB spy who was assassinated in London through the use of a radioactive toxin, allegedly at the orders or with the collusion of the Russian government — all of these people have claimed protection from human rights law against a state affecting their lives while acting outside its territory. These matters are extremely politically and legally sensitive, leading to much confusion, ambiguity and compromise in the existing case law. This study attempts to clear up some of this confusion, and expose its real roots. It examines the notion of state jurisdiction in human rights treaties, and places it within the framework of international law. It is not limited to an inquiry into the semantic, ordinary meaning of the jurisdiction clauses in human rights treaties, nor even to their construction into workable legal concepts and rules. Rather, the interpretation of these treaties cannot be complete without examining their object and purpose, and the various policy considerations which influence states in their behaviour, and courts in their decision-making. The book thus exposes the tension between universality and effectiveness, which is itself the cause of methodological and conceptual inconsistency in the case law. Finally, the work elaborates on the several possible models of the treaties' extraterritorial application. It offers not only a critical analysis of the existing case law, but explains the various options that are before courts and states in addressing these issues, as well as their policy implications.

The European Court of Human Rights between Law and Politics

Jonas Christoffersen and Mikael Rask Madsen — 2011-09-22

Author:: JonasChristoffersenExecutive Director, Danish Institute for Human Rightshttp://humanrights.dk/staff/staff+profiles?doc=10553Mikael RaskMadsenProfessor of European Law and Integration and Director, Centre for Studies in Legal Culture, University of Copenhagenhttp://jura.ku.dk/crs/english/staff/profile/?id=72332
ISBN:: 9780199694495
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199694495.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This book provides the first comprehensive analysis of the rise and subsequent development of one of the most striking supranational judicial institutions ever created. The book brings together leading scholars and practitioners to cast new light on the substantial jurisprudence and perpetual political reform of the Court. The broad analysis based on historical, legal, and social scientific perspectives provides new insight into the lasting institutional crisis of the ECtHR and identifies the lessons that can be learned and taken into account in the shaping of the future of the European Convention on Human Rights and Fundamental Freedoms. The European Court of Human Rights is in many ways an unparalleled success. The European Convention took its own unique path under the leadership of the Strasbourg Court that embarked, during the 1970s, on the development of a more progressive jurisprudence. In the post-Cold War era, it went from being the guarantor of human rights solely in Western Europe to becoming increasingly involved in the transition to democracy and the rule of law in Eastern Europe. Now the protector of the human rights of some 800 million Europeans from forty-seven different countries, the European system is once again deeply challenged — this time by a massive caseload as well as the Member States’ increased reluctance towards the Court.

Compensation and Restitution in Investor-State Arbitration

Borzu Sabahi — 2011-09-22

Author:: Borzu Sabahi
ISBN:: 9780199601189
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Company and Commercial Law
DOI:: 10.1093/acprof:oso/9780199601189.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This book presents a detailed study on compensation and restitution in investor state arbitration pursuant to investment treaties. The study begins by examining the historical roots of the principles of reparation, restitution, and compensation in international law as reflected in the landmark Chorzów Factory case. The roots of these principles are traced to Roman law and private law concepts that entered into the European continent's legal systems. Moving to modern times, the study focuses on the principle of reparation set out in the Chorzów Factory case and its requirement that reparation put the aggrieved party in the ‘hypothetical position’ that would have existed if not for the wrongful act. Restitution, both material and judicial, is discussed as a form of reparation. Compensation, by far the more common form of reparation in modern international investment disputes, is discussed in detail. In dealing with compensation for expropriation, this book examines the recent trends in which lawful and unlawful expropriation cases are distinguished and the impact that this distinction can have on the amount of compensation. This book additionally outlines some of the main valuation and accounting methods used in setting the hypothetical position to measure compensation due. Various forms of supplemental compensation, such as moral damages, interest, or arbitration costs, may also be necessary to fully restore the hypothetical position; these are discussed along with applicable limitations. This study also sets out important principles that may limit compensation generally, such as causation and the prohibition on double counting.

Blame it on the WTO?

Sarah Joseph — 2011-09-22

Author:: Sarah Joseph
ISBN:: 9780199565894
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199565894.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

The World Trade Organization (WTO) is often accused of, at best, not paying enough attention to human rights or, at worst, facilitating and perpetuating human rights abuses. This book weighs these criticisms and examines their validity, incorporating legal arguments as well as some economic and political science perspectives. After introducing the respective WTO and human rights regimes, and discussing their legal and normative relationship to each other, the book presents a detailed analysis of the main human rights concerns relating to the WTO. These include the alleged democratic deficit within the Organization and the impact of WTO rules on the right to health, labour rights, the right to food, and on questions of poverty and development. Given that some of the most important issues within the WTO concern its impact on poor people within developing States, the book asks whether rich States have an obligation to the people of poorer States to construct a fairer trading system that better facilitates the alleviation of poverty and development. Against this background, the book examines the current Doha round proposals as well as suggestions for reform of the WTO to make it more ‘human rights-friendly’.

War by Contract

Francesco Francioni and Natalino Ronzitti — 2011-05-01

Author:: FrancescoFrancioniProfessor of International Law and Human Rights and Co-Director of the Academy of European Law EUIhttp://www.eui.eu/DepartmentsAndCentres/Law/People/Professors/Francioni.aspx#BooksNatalinoRonzittiProfessor of International Law, LUISS University School of Law, Romehttp://docenti.luiss.it/ronzitti/
ISBN:: 9780199604555
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199604555.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

The growth in scope and importance of the private military and security industry (PMSI) in the past decade has challenged the role of the state as the main provider of defence and security functions. At the same time it has put under stress the state's authority to properly oversee the conduct of private contractors and has raised the question whether existing rules of domestic law and international law are adequate to ensure their accountability in the event of abuses. This book addresses this second question through the lens of international human rights law and international humanitarian law and offers a systematic analysis of the way in which these two bodies of international law, applicable in time of peace and in the event of armed conflict, may be interpreted and implemented in a way as to fill possible accountability gaps. Human rights and humanitarian law obligations are analysed from the point of view of their applicability to the states involved, to international organisations, to the companies and their individual employees. Access to civil remedies of potential victims and criminal prosecution of private contractors, as well as new policy issues, such as the use of private contractors in the fights against piracy, are also covered in the book.

The Power of Deliberation

Ian Johnstone — 2011-05-01

Author:: Ian Johnstone
ISBN:: 9780195394931
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780195394931.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

Arguing about matters of public policy is ubiquitous in democracies. The ability to resolve conflicts through peaceful contestation is a measure of any well-ordered society. Arguing is almost as ubiquitous in international affairs, yet it is not viewed as an important element of world order. This book challenges the assumption that arguing is mere lip service with no real impact on the behavior of states or the structure of the international system. The book focuses on legal argumentation and asks why, if the rhetoric of law is inconsequential, governments and other international actors bother engaging in it. The book considers why argumentation occurs beyond nation states. It focuses on deliberation in and around international organizations, drawing on various strands of legal, political, and international relations theory to identify common features of legal argumentation and deliberative politics. The book's central claim is that international organizations are places where “interpretive communities” coalesce, and the quality of the deliberations these communities provoke is a measure of the legitimacy of the organization.

The Philosophical Foundations of Extraterritorial Punishment

Alejandro Chehtman — 2011-05-01

Author:: Alejandro Chehtman
ISBN:: 9780199603404
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199603404.001.0001
Published in print:: 2010
Published Online:: 2011-05-01

Why should a Spanish court take jurisdiction over an American lawyer accused of facilitating torture in Guantanamo Bay? What empowers a London magistrate to sign an arrest warrant for a former Chilean President? Can it be legitimate or morally defensible for an Israeli court to try a former Nazi whose crimes occurred outside Israel and indeed prior to the establishment of Israel? This book provides a systematic examination of normative foundations of extraterritorial punishment under international law. It examines when, and under what conditions, a state or an international tribunal would be morally justified in punishing an offender for a crime she committed extraterritorially. The first part of the book concentrates on the rules that regulate extraterritorial jurisdiction for what are commonly conceptualized as domestic crimes. The second part, by contrast, concentrates on international crimes and the jurisdictional rules applicable to them. While doing so, it also assesses the normative force of several objections often raised against extraterritorial prosecutions, such as the charges of show trials, victors' justice, tu quoque, or the claim that international criminal justice is liable to political hijacking or ultimately but an expensive taste for elites.

National Courts and the International Rule of Law

Andre Nollkaemper — 2011-05-01

Author:: Andre Nollkaemper
ISBN:: 9780199236671
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199236671.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

This book explores how domestic courts contribute to the maintenance of the rule of international law by providing judicial control over the exercises of public powers that may conflict with international law. The main focus of the book is on judicial control of exercise of public powers by states. Key cases that are reviewed in this book, and that provides empirical material for the main propositions, include Hamdan, in which the US Supreme Court reviewed detention by the United States of suspected terrorists against the 1949 Geneva Conventions; Adalah, in which the Supreme Court of Israel held that the use of local residents by Israeli soldiers in arresting a wanted terrorist is unlawful under international law; and the Narmada case, in which the Indian Supreme Court reviewed the legality of displacement of people in connection with the building of a dam in the river Narmada under the ILO Indigenous and Tribal Populations Convention 1957 (nr 107). This book primarily explores what it is that international law requires, expects, or aspires that domestic courts do, and against this backdrop of what international law requires it seeks to map patterns of domestic practice in the actual or possible application of international law, and to determine what such patterns mean for the protection of the rule of international law.

Maritime Security and the Law of the Sea

Natalie Klein — 2011-05-01

Author:: Natalie Klein
ISBN:: 9780199566532
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199566532.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

This book examines the rights and duties of states across a broad spectrum of maritime security threats. It provides comprehensive coverage of the different dimensions of maritime security in order to assess how responses to maritime security concerns are and should be shaping the law of the sea. The discussion canvasses passage of military vessels and military activities at sea, law enforcement activities across the different maritime zones, information sharing and intelligence gathering, as well as armed conflict and naval warfare. In doing so, this book not only addresses traditional security concerns for naval power but also examines responses to contemporary maritime security threats, such as terrorism, weapons of mass destruction, piracy, drug-trafficking, environmental damage and illegal fishing. While the protection of sovereignty and national interests remain fundamental to maritime security and the law of the sea, there is increasing acceptance of a common interest that exists among states when seeking to respond to a variety of modern maritime security threats. It is argued that security interests should be given greater scope in our understanding of the law of the sea in light of the changing dynamics of exclusive and inclusive claims to ocean use. More flexibility may be required in the interpretation and application of the UN Convention on the Law of the Sea if appropriate responses to ensure maritime security are to be allowed.

Maritime Power and the Law of the Sea

James Kraska — 2011-05-01

Author:: James Kraska
ISBN:: 9780199773381
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199773381.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

This book analyzes the evolving rules governing freedom of the seas and their impact on expeditionary operations in the littoral, near-shore coastal zone. Coastal state practice and international law are developing in ways that restrict naval access to the littorals and associated coastal communities and inshore regions that have become the fulcrum of world geopolitics. Consequently, the ability of naval forces to project expeditionary power throughout semi-enclosed seas, exclusive economic zones (EEZs) and along the important sea-shore interface is diminishing and, as a result, limiting strategic access and freedom of action where it is most needed. The book describes how control of the global commons, coupled with new approaches to sea power and expeditionary force projection, has given the United States and its allies the ability to assert overwhelming sea power to nearly any area of the globe. But as the law of the sea gravitates away from a classic liberal order of the oceans, naval forces are finding it more challenging to accomplish the spectrum of maritime missions in the coastal littorals, including forward presence, power projection, deterrence, humanitarian assistance, and sea control. The developing legal order of the oceans fuses diplomacy, strategy, and international law to directly challenge unimpeded access to coastal areas, with profound implications for American grand strategy and world politics.

Iraq and the Use of Force in International Law

Marc Weller — 2011-05-01

Author:: Marc Weller
ISBN:: 9780199595303
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780199595303.001.0001
Published in print:: 2010
Published Online:: 2011-05-01

The prohibition of the use of force is one of the most crucial elements of the international legal order. Our understanding of that rule was both advanced and challenged during the period commencing with the termination of the Iran–Iraq war and the invasion of Kuwait, and concluding with the invasion and occupation of Iraq. The initial phase was characterized by hopes for a functioning collective security system administered by the United Nations as part of a New World Order. The liberation of Kuwait, in particular, was seen by some as a powerful vindication of the prohibition of the use of force and of the UN Security Council. However, the operation was not really conducted in accordance with the requirements for collective security established in the UN Charter. In a second phase, an international coalition launched a humanitarian intervention operation, first in the north of Iraq, and subsequently in the south. That episode is often seen as the fountainhead of the post-Cold War claim to a new legal justification for the use of force in circumstances of grave humanitarian emergency — a claim subsequently challenged during the armed action concerning Kosovo. There then followed repeated uses of force against Iraq in the context of the international campaign to remove its present or future weapons of mass destruction potential. Finally, the episode reached its controversial zenith with the full scale invasion of Iraq led by the US and the UK in 2003. This book analyzes these developments, and their impact on the rule prohibiting force in international relations.

Global Perspectives on Income Taxation Law

Reuven Avi-Yonah, Nicola Sartori, and Omri Marian — 2011-05-01

Author:: Reuven Avi-Yonah, Nicola Sartori, Omri Marian
ISBN:: 9780195321357
Publisher:: Oxford University Press
Subjects:: Law, Company and Commercial Law, Public International Law
DOI:: 10.1093/acprof:oso/9780195321357.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

This book covers the standard topics regarding income tax, using a comparative perspective. The book considers the US approach as a benchmark and compares it with approaches used in other countries that form an interesting contrast, or a telling similarity. Comparative tax studies serve multiple purposes. Many commentators have suggested comparative taxation as an instrument to advance, inter alia, successful tax reforms, cultural understanding, democratic values, legal harmonization, and a better understanding of domestic tax laws. This book is offering a general approach to comparative tax studies that goes beyond the view of comparative taxation as an autonomous field of legal studies.

Genocide Denials and the Law

Ludovic Hennebel and Thomas Hochmann — 2011-05-01

Author:: LudovicHennebelFree University of BrusselsThomasHochmannUniversity of Paris Panthion-Sorbonne
ISBN:: 9780199738922
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199738922.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

This book offers a thorough study of the relationship between law and genocide denial from the perspectives of specialists from six countries. This controversial topic provokes strong international reactions involving emotion caused by denial along with concerns about freedom of speech. The book offers an in-depth study of the various legal issues raised by the denial of crimes against humanity, presenting arguments both in favor of and in opposition to prohibition of this expression. It does not adopt a pro or contra position, but includes chapters written by proponents and opponents of a legal prohibition on genocide denial. The book comparatively examines this issue and tackles this diverse topic by addressing not only the theoretical and philosophical aspects of denial, but also the specific problems faced by judges who implement anti-denial laws.

From Bilateralism to Community Interest

2011-05-01

Author:: UlrichFastenrathProfessor of Public Law, European Union Law, and Public International Law, Technische Universitat Dresdenhttp://tu-dresden.de/die_tu_dresden/fakultaeten/juristische_fakultaet/jfoeffl3/inhaberRudolfGeigerProfessor Emeritus of Public, European, and International Law, University of LeipzigDaniel-ErasmusKhanProfessor of Public Law, European Law, and International Law, University of Bundeswehr, MunichAndreasPaulusJudge, Germany's Constitutional CourtSabinevon SchorlemerProfessor of Public International Law, European Law, and International Relations, Technische Universitat Dresdenhttp://tu-dresden.de/die_tu_dresden/fakultaeten/juristische_fakultaet/jfoeffl9/lebenslauf_tabChristophVedderProfessor of Public Law, Public International, and European Law, University of Augsburg
ISBN:: 9780199588817
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199588817.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

This Festschrift, dedicated to Judge Bruno Simma, traces the development of international law from regulating bilateral state-to-state relationships towards strengthening the entire international community by protecting human security, the global environment, and human rights. It provides both theoretical and practical insights into these sometimes conflicting goals, their basis in international law, and the role played by international institutions charged with upholding these values and interests. The work thus examines the mechanism by which international law contributes to the realization not only of individual State interests, but the interests of the international community as a whole. From this vantage point, it looks at the various functions that international law fulfils in the international community, from law-making and institution-building towards adjudication and the securing of human rights. Taken together, the chapters paint a detailed, but nevertheless comprehensive picture of the realization of community interest in contemporary international law. As professor and judge, Bruno Simma has contributed to all of these tasks: providing ground-breaking theoretical work, serving in the International Law Commission and in the Committee for Economic, Social, and Cultural Rights, and finally, as a judge at the International Court of Justice in The Hague.

The Evolving International Investment Regime

Jose E. Alvarez, Karl P. Sauvant, Kamil Girard Ahmed, and Gabriela P. Vizcaino — 2011-05-01

Author:: Jose E. Alvarez, Karl P. Sauvant, Kamil Girard Ahmed, Gabriela P. Vizcaino
ISBN:: 9780199793624
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199793624.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

With the growth of the global economy over the past two decades, foreign direct investment (FDI) laws, at both the national and international levels, have undergone rapid development in order to strengthen the protection standards for foreign investors. In terms of international investment law, a network of international investment agreements has arisen as a way to address FDI growth. FDI backlash, reflective of more restrictive regulation, has also emerged. This book analyzes the existing challenges to the international investment regime, and addresses these challenges going forward. It also examines the dynamics of the international regime, as well as a broader view of the changing global economic reality both in the United States and in other countries. The content for the book is a compendium of chapters by leading thinkers, originating from the International Investment Conference “What's New in International Investment Law and Policy?”.

Disobeying the Security Council

Antonios Tzanakopoulos — 2011-05-01

Author:: Antonios Tzanakopoulos
ISBN:: 9780199600762
Publisher:: Oxford University Press
Subjects:: Law, Public International Law
DOI:: 10.1093/acprof:oso/9780199600762.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

This book examines how the United Nations Security Council, in exercising its power to impose binding non-forcible measures (‘sanctions’) under Article 41 of the UN Charter, may violate international law, i.e., limits on its power imposed by the UN Charter itself and by general international law, including human rights guarantees. Such acts may engage the international responsibility of the United Nations, the organization of which the Security Council is an organ. The book then proceeds to examine how (and by whom) the engagement of this responsibility can be determined, i.e., who it is that can find the Council to have acted unlawfully. Most importantly, the book discusses how (and by whom) the responsibility of the UN for unlawful Security Council sanctions can be implemented, i.e., how (and by whom) the UN can be held to account for Security Council excesses. The central thesis is that States can react to unlawful sanctions imposed by the Security Council in a decentralized manner by disobeying the Security Council's command. In international law, this disobedience can be justified as being a countermeasure to the Security Council's unlawful act. Recent practice of States, whether undertaken by executives or, increasingly, by domestic courts, evidences an augmenting tendency to disobey sanctions that are perceived as unlawful. After discussing other possible qualifications of disobedience under international law, the book concludes that this practice can (and should) be qualified as a countermeasure.