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quarta-feira, 30 de julho de 2014

Book Chapter - Chapter 9: Serious Breaches of Peremptory Norms

Graduate Institute of International and Development Studies (HEI)


Graduate Institute of International and Development Studies (HEI) - The Graduate Institute, Geneva

April 3, 2014

in Principles of Shared Responsibility in International Law, A. Nollkaemper and I. Plakokefalos (eds), Cambridge: CUP (2014 Forthcoming) 
SHARES Research Paper 39 (2014) 

Abstract:

The contribution considers the extent to which the aggravated regime of international responsibility accommodates the scenario of several entities involved in the commission of serious breaches of peremptory norms. We explore this question by examining issues of shared responsibility in light of structural, substantive, and procedural aspects of serious breaches.

Number of Pages in PDF File: 26

Disponível em: <http://ssrn.com/abstract=2419897>. Acesso em 25 maio 2014.


segunda-feira, 28 de julho de 2014

Article: Theorizing Precedent in International Law

University of Georgia School of Law

April 2, 2014

Interpretation in International Law (Andrea Bianchi, Daniel Peat & Matthew Windsor, eds., Oxford University Press, Forthcoming 

Abstract:

Precedent presents a puzzle for international law. As a matter of doctrine, judicial decisions construing international law are not-in-and-of themselves law. They are not binding on future parties in future cases, even before the same tribunal. And yet, international precedent is everywhere. From international investment to international criminal law to international human rights to international trade, prior decisions are invoked, argued over, and applied as precedents by practitioners and by tribunals. 

How and why do certain interpretations of international law take on the weight of precedent, reshaping international law arguments around them, while others do not? This chapter develops a framework for explaining the emergence of precedent in international law that can begin to solve this puzzle. It focuses on three sets of factors relevant to a prior interpretation’s precedential weight, (1) the varied potential sources of precedent, (2) the factors that might imbue a source with authority, (3) and the actors and audiences who might invoke a precedent or respond it, before weaving them into three overlapping accounts of how these factors interact, (1) a rationalist account, (2) a jurisprudential account, (3) and a sociological account. The chapter ends with a couple of case-studies that demonstrate how these factors and accounts can help explain the actual patterns of precedent we observe in international law today.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2419706>. Acesso em 25 maio 2014.


sexta-feira, 25 de julho de 2014

Article: H.L.A. Hart's Lost Essay: Discretion and the Legal Process School

Geoffrey Shaw

Yale University - Law School; University of Oxford

December 20, 2013


Abstract: 

This Essay analyzes an essay by H. L. A. Hart about discretion that has never before been published, and has often been considered lost. Hart, one of the most significant legal philosophers of the twentieth century, wrote the essay at Harvard Law School in November 1956, shortly after he arrived as a visiting professor. In the essay, Hart argued that discretion is a special mode of reasoned, constrained decisionmaking that occupies a middle ground between arbitrary choice and determinate rule application. Hart believed that discretion, soundly exercised, provides a principled way of coping with legal indeterminacy that is fully consistent with the rule of law. This Essay situates Hart’s paper — Discretion — in historical and intellectual context, interprets its main arguments, and assesses its significance in jurisprudential history. In the context of Hart’s work, Discretion is notable because it sketches a theory of legal reasoning in depth, with vivid examples. In the context of jurisprudential history, Discretion is significant because it sheds new light on long-overlooked historical and theoretical connections between Hart’s work and the Legal Process School, the American jurisprudential movement dominant at Harvard during Hart’s year as a visiting professor. Hart’s Discretion is part of our jurisprudential heritage, advancing our understanding of legal philosophy and its history.

Number of Pages in PDF File: 62

Disponível em: <http://ssrn.com/abstract=2431325>. Acesso em 25 maio 2014.








quarta-feira, 23 de julho de 2014

Article - Citizenship: Historical Development of

Richard Bellamy 
University College London - Department of Political Science

April 27, 2014

'Citizenship: Historical Development of', in James Wright (ed), International Encyclopaedia of Social and Behavioural Sciences, 2nd ed., Elsevier, 2014 Forthcoming 

Abstract:

Historically, the distinctive core of citizenship has been the possession of the formal status of membership of a political and legal entity and having particular sorts of rights and obligations within it. This core understanding of citizenship goes back to classical times and coalesced around two broad understandings of citizenship stemming from ancient Greece and Imperial Rome respectively that later evolved into what came to be termed the ‘republican’ and ‘liberal’ accounts of citizenship. This entry first examines these two classic views, then looks at how they changed during the Renaissance and Reformation, and finally turns to the ways the two were to some extent brought together following the American and French revolutions within the liberal-democratic nation state.

Number of Pages in PDF File: 18

Disponível em: <http://ssrn.com/abstract=2429855>. Acesso em 25 maio 2014.


segunda-feira, 21 de julho de 2014

Article: Executive Deference, Sovereign Immunity, and NML Capital v. Argentina: A Constitutional Analysis of Sovereign Immunity Litigation

University of Illinois College of Law

February 14, 2014


Abstract:

NML Capital v. Argentina is a prime example of how the current sovereign immunity litigation regime is devoid of constitutional analysis. This Paper attempts to trace out the historic constitutional analysis underlying sovereign immunity claims in the context of sovereign debt defaults and apply them to the current litigation. The history of the sovereign debt market and constitutional challenges to those changes as well as the evolution of constitutional analysis of sovereign debt litigation indicate a longstanding constitutional framework. This paper explores how the Argentina litigation fits within the broader framework of historical sovereign immunity litigation — and suggests that the Supreme Court can reestablish the traditional constitutional deference to the executive in this litigation.

Number of Pages in PDF File: 34

Disponível em: <http://ssrn.com/abstract=2396192>. Acesso em 3 maio 2014.

sexta-feira, 18 de julho de 2014

Book Chapter: International Organizations: Personality, Immunities, Responsibility, and Remedies

University of Oxford - Faculty of Law

February 1, 2014

D. Sarooshi, ed., Mesures de réparation et responsabilité à raison des actes des organisations internationales/Remedies and Responsibility for the Actions of International Organizations (Hague Academy of International Law, Martinus Nijhoff, 2014) Chapter 1 

Abstract:

The law of international organizations is undergoing profound changes. This has been caused in large part by the increasingly important role that international organizations have played in exercising powers conferred on them by national governments. This phenomenon has led to concerted attempts by States, international courts and tribunals, and domestic courts to seek to ensure accountability for these exercises of power by imposing corresponding limits on international organisations. This volume is focused on several key aspects of this accountability process: the content of the rules of international law relating to when can an international organization be held responsible for its breach of a primary rule of international (the law codified in the UN draft Articles on the Responsibility of International Organizations (“DARIO”)), when can an international organization plead immunity from jurisdiction of national and possibly international tribunals, and what remedies can be taken against an international organisation. The chapters in this volume are the result of research conducted by outstanding junior academics who were participants in the 2011 Centre for Studies and Research in International Law and International Relations of the Hague Academy of International Law. This author had the good fortune of being the Director of both the English and French sections of the Centre for Research and enjoyed immensely providing supervision and guidance to these talented young academics.

Disponível em: <http://ssrn.com/abstract=2398558>. Acesso em 3 maio 2014.



Number of Pages in PDF File: 29

quarta-feira, 16 de julho de 2014

EJIL: Talk! - The Genesis of Lex Specialis

Published on April 30, 2014 Author: Marko Milanovic

When it comes to describing the relationship between human rights and international humanitarian law, the lex specialis principle is frequently taken for granted, as if it has somehow always been there, carved in stone. But what is its actual genesis? By ‘genesis’ I do not mean its ancient history. Yes, it was in the Digest of Justinian. But, honestly, who cares? We have little or no idea of what exactly the lawyers of the Roman and Byzantine empires meant by the expression and how they applied it in practice, and indeed there are several different ways of conceptualizing lex specialis.

My question is rather this: when did we, the community of international lawyers, start using this language to describe the relationship between IHL and IHRL? The timeframe for answering that question is necessarily more limited and easier to manage, since IHRL did not become a part of public international law until after the Second World War. I am obviously too young to have direct experience of this, but my impression has been that during the first fifty years or so of their co-existence very little thought was given to how IHL and IHRL would interact, and when the issue was discussed it was generally not framed in terms of lex specialis. My hypothesis is thus that the term entered common parlance among the international lawyers who have dealt with the issue only after the end of the Cold War, and specifically only after the ICJ’s 1996 Nuclear Weapons advisory opinion, para. 25, when the Court itself first used the term:

In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

To prove or disprove this hypothesis, which is what I am doing in a paper I’m writing right now, I need to do two things. First, I need to establish how the Court itself got the idea to use the lex specialis principle to describe the relationship between the rules of IHL and IHRL. Was it complete innovation on its part? Did it come from the pleadings of some of the participants in the advisory proceedings? Or did it come from generally accepted scholarship on the issue? Second, I need to look at the scholarship itself, specifically those works that examined the issue before the Nuclear Weapons opinion and immediately after it.

The pre-1996 scholarship I will leave aside for the purpose of this post, but from what I’ve read so far there are few, if any references to the lex specialis principle as a solution to normative conflicts between IHL and IHRL (I will obviously very much appreciate it if readers could point me to any such references in scholarship in whatever language). But I’ve read through all of the pleadings in the two nuclear weapons cases (the WHO and GA requests), both written and oral. And out of the 40 or so states that appeared before the Court in the two cases, do you know how many referred to thelex specialis principle? Just one – the United Kingdom.

In the first round of the WHO case the UK did not even discuss the human rights issue. When it came to the second round of written pleadings, which were due at the same time as the first round of pleadings for the General Assembly Nuclear Weapons case, the UK decided to give its comments on the submissions in the WHO case in its written statement in Nuclear Weapons, i.e. that single document was both the second submission in the WHO case and the first in Nuclear Weapons. The UK now did extensively discuss human rights and environmental law, arguing that the issue was not the compatibility of nuclear weapons with these legal regimes in abstracto, but ‘whether any of the rules of the law of human rights or the law on environmental protection can be construed, in accordance with the general principles stated above, as prohibiting the use or threat of use of nuclear weapons when carried out by way of legitimate self-defence.’ (WS, para. 3.98 (emphasis in original)).

In that regard, the UK noted that Article 15(2) ECHR explicitly referred to derogations from the right to life for deaths resulting from lawful acts of war, and argued that:

Although the International Covenant on Civil and Political Rights contains no provision equivalent to Article 15(2) of the European Convention, Article 6(1) prohibits only the ‘arbitrary’ deprivation of life. If the Covenant is applicable at all to the taking of life in the context of an armed conflict, it is necessary to determine what the term ‘arbitrary’ means in that context. Since the taking of life is an inescapable feature of the conduct of armed conflict and since it has never seriously been suggested that the Covenant outlaws the use of force by way of national self-defence, the reference to ‘arbitrary’ deprivation of life must contain the means for distinguishing between those acts of taking life in armed conflict which are compatible with Article 6 of the Covenant and those which are not. The only sensible construction which can be placed on the term ‘arbitrary’ in this context is that it refers to whether or not the deliberate taking of life is unlawful under that part of international law which was specifically designed to regulate the conduct of hostilities, that is the laws of armed conflict. On that basis, the use of a weapon to take life in armed conflict could only amount to an arbitrary deprivation of life, for the purposes of Article 6 of the Covenant, if it was contrary to the laws of armed conflict but not otherwise.
(WS, para. 3.101)

After briefly looking at the travaux of the Covenant and the work of the Human Rights Committee, the UK concluded its submissions on human rights as follows:

The protection given by the law of human rights does nor, therefore, lead to a different conclusion regarding the legality of the use of nuclear weapons from that provided by the law of armed conflict. Since the law of human rights is concerned primarily with the protection of human rights in peacetime, whereas the law of armed conflict is a lex specialis designed to regulate the conduct of hostilities, it is entirely appropriate that the human rights agreements should, in effect, refer to the law of armed conflict in order to determine whether or not any particular instance of the deprivation of life in wartime is arbitrary. The same principle applies,a fortiori, in respect of the protection of other human rights.
(WS, para. 3.108)

This, then, was the very first appearance of lex specialis in the written pleadings, and indeed theonly such appearance in the UK’s written statement. Notably, neither of the paragraphs I have just quoted in full provide any references or citations to authority of any kind. The UK’s counsel obviously did their job well, since the language of the UK’s submissions is clearly reflected in paragraph 25 of the Court’s Nuclear Weapons opinion. This is, to my mind, undoubtedly the intellectual genesis of the Court’s holding. In the combined oral hearings in the two cases no state, not even the UK, nor France, nor the United States, nor Russia, mentioned lex specialis, although the UK did articulate a version thereof without the Latin: CR 1995/34, at 43-44.

So why is this relevant? I do not want to go here into the merits or demerits of lex specialis and its various different conceptions. My only point is this: despite the Latin veneer of antiquity, and whatever its merits, the lex specialis principle was NOT part of mainstream thinking on the relationship between IHL and IHRL before the 1996 opinion (assuming there was any mainstream thinking on this issue in the first place). If it was, one would have expected more than one, single, isolated and conclusory reference to the principle in the hundreds of pages of written and oral pleadings before the ICJ.

Disponível em: <http://www.ejiltalk.org/the-genesis-of-lex-specialis/>. Acesso em 3 maio 2014.

segunda-feira, 14 de julho de 2014

Article: National Treatment and MFN in the (Invisible) EU Model BIT

University of Oxford - Faculty of Law

February 24, 2014

Journal of World Investment and Trade, Vol. 15, 2014, Forthcoming 

Abstract:

This article discusses the potential provisions on national treatment and MFN to be included in a future EU Model BIT against the background of the leaked draft text of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) investment chapter. It concludes that the EU treaty practice seems to be closer to investment protection models influenced by NAFTA, such as those prevalent in the Canada and US Model BITs, and that a future EU Model BIT along these lines will depart significantly from the investment treaty practice of EU Member States.

Number of Pages in PDF File: 17

Disponível em: <http://ssrn.com/abstract=2400824>. Acesso em 22 abr. 2014.

sexta-feira, 11 de julho de 2014

Article: Climate Change Refugees

University of Denver Sturm College of Law

February 26, 2014

Critical Review of International Social and Political Philosophy, Forthcoming 

Abstract:

Under the UNHCR definition of a refugee, set out in the 1967 Protocol Relating to the Status of Refugees, people fleeing their homes because of natural disasters or other environmental problems do not qualify for refugee status and the protection that come from such status. In a recent paper, "Who Are Refugees?", I defended the essentials of the UNHCR definition on the grounds that refugee status and protection is best reserved for people who can only be helped by granting them refuge in a safe state for an indefinite period of time, and argued that this does not include most people fleeing from natural disasters. This claim is most strongly challenged by possibility of displacement from climate change. In this paper I will explore to what degree the logic of the refugee convention, as set out in my earlier paper, can and should be extended to those fleeing the results of climate change, and will argue that the logic of the refugee convention tells in favor of extending refugee protection to a portion of those who must flee their homes because of climate-change related environmental problems.

Number of Pages in PDF File: 19

Disponível em: <http://ssrn.com/abstract=2402033>. Acesso em 22 abr. 2014.


quarta-feira, 9 de julho de 2014

Article: Human Rights to Culture, Family, and Self-Determination: The Case of Adoptive Couple v. Baby Girl

University of Colorado Law School

Suffolk University Law School

February 26, 2014

Forthcoming in STEFAN KIRCHNER AND JOAN POLICASTRI, EDS., INDIGENOUS RIGHTS IN INTERNATIONAL LAW. 

Abstract:

The well-being of indigenous children is a subject of major concern for indigenous peoples and human rights advocates alike. In 2013, the U.S. Supreme Court decided in Adoptive Couple v. Baby Girl that the Indian Child Welfare Act did not prevent the adoption of a Cherokee child by a non-Indian couple. This occurred over the objections of her Cherokee biological father, extended family, and Tribal Nation. After the decision, Baby Girl’s father and the adoptive couple contested the matter in a number of proceedings, none of which considered the child’s best interests as an Indian child. The tribally-appointed attorney for Baby Girl, as well as the National Indian Child Welfare Association and National Congress for American Indians, began examining additional venues for advocacy. Believing that the human rights of Baby Girl, much like those of other similarly situated indigenous children, were being violated in contravention of the United Nations Declaration on Indigenous Peoples Rights, and other instruments of international law, they asked us to bring the matter to the attention of the United Nations Special Rapporteur for Indigenous Peoples Rights (“UNSR”). We prepared a “statement of information” to alert the UNSR of the human rights violations occurring in the case. With the permission of the attorneys and organizations involved, this chapter introduces the Baby Girl case, contextualizes the claims in international human rights law, and then reproduces the statement of information and portions of the UNSR’s subsequent public statement. It concludes with an update on the Baby Girl case and broader discussion about the potential for using international law and legal forums to protect the human rights of indigenous children.

Number of Pages in PDF File: 28

Disponível em: <http://ssrn.com/abstract=2401886>. Acesso em 22 abr. 2014.

segunda-feira, 7 de julho de 2014

Article: The Changing Architecture of International Climate Change Law

Stockholm Environment Institute; University of Oxford; VU University Amsterdam

University of Greifswald; Ecologic - Institute for International and European Environmental Policy

Stockholm Environment Institute

February 28, 2014

Forthcoming in Van Calster, G., Vandenberghe, W., and Reins, L. (eds.), Research Handbook on Climate Change Mitigation Law, Cheltenham, Edward Elgar, 2014. 

Abstract:

This chapter offers a bird’s eye view of the overall architecture of international climate change law. Following a discussion of the defining features of climate change law, it discusses the origins and development of the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and subsequent arrangements adopted under its auspices, notably the 1997 Kyoto Protocol and the 2010 Cancún Agreements. The chapter shows that while the UNFCCC process has grown more complex over time – in terms of its rules, institutions and the actors involved – so has international climate change law and governance more generally. It illustrates this argument by drawing attention to six observable trends: (i) the multiplication of international forums addressing climate change; (ii) the softening of commitments; (iii) the changing nature of differentiation; (iv) the utilization of innovative policy instruments; (v) the increasing focus on litigation; and (vi) the growing importance of nonstate actors and transnational governance.

Number of Pages in PDF File: 20

Disponível em: <http://ssrn.com/abstract=2402770>. Acesso em 22 abr. 2014.

sexta-feira, 4 de julho de 2014

Article: Supra-Legality of International Human Rights Treaties and Constitutional Interpretation

Universidade Federal do Pará

August 1, 2012

SUR International Journal on Human Rights, v. 10, n. 18, Jun. 2013 

Abstract:

In December 2008, when ruling on a number of cases involving the civil imprisonment of unfaithful trustees, the Supreme Court modified its understanding of the hierarchy of international human rights treaties in Brazilian law, adopting the thesis of supra-legality. This article analyzes the potential impacts that this change can have on constitutional interpretation in Brazil, examining how the Supreme Court has applied the thesis of supra-legality and the extent to which the hierarchy of international human rights treaties has influenced, in other countries, their use in interpreting the Constitution. The article concludes that supra-legality allows for the construction of arguments in favor of using human rights treaties as a parameter of constitutional interpretation in Brazilian law.

Number of Pages in PDF File: 30

Disponível em: <http://ssrn.com/abstract=2401224>. Acesso em 22 abr. 2014.


quarta-feira, 2 de julho de 2014

Article: Theorizing Precedent in International Law

University of Georgia School of Law

April 2, 2014

Interpretation in International Law (Andrea Bianchi, Daniel Peat & Matthew Windsor, eds., Oxford University Press, Forthcoming 

Abstract:

Precedent presents a puzzle for international law. As a matter of doctrine, judicial decisions construing international law are not-in-and-of themselves law. They are not binding on future parties in future cases, even before the same tribunal. And yet, international precedent is everywhere. From international investment to international criminal law to international human rights to international trade, prior decisions are invoked, argued over, and applied as precedents by practitioners and by tribunals. 

How and why do certain interpretations of international law take on the weight of precedent, reshaping international law arguments around them, while others do not? This chapter develops a framework for explaining the emergence of precedent in international law that can begin to solve this puzzle. It focuses on three sets of factors relevant to a prior interpretation’s precedential weight, (1) the varied potential sources of precedent, (2) the factors that might imbue a source with authority, (3) and the actors and audiences who might invoke a precedent or respond it, before weaving them into three overlapping accounts of how these factors interact, (1) a rationalist account, (2) a jurisprudential account, (3) and a sociological account. The chapter ends with a couple of case-studies that demonstrate how these factors and accounts can help explain the actual patterns of precedent we observe in international law today.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2419706>. Acesso em 22 abr. 2014.