Páginas

segunda-feira, 25 de julho de 2016

Authority and Dialogue: State and Official Immunity in Domestic and International Courts

Chimène I. Keitner 
University of California Hastings College of the Law

July 14, 2016

CONCEPTS OF INTERNATIONAL LAW IN EUROPE AND THE UNITED STATES (Chiara Giorgetti & Guglielmo Verdirame, eds., Cambridge Univ. Press, Forthcoming) 

Abstract:    
This chapter considers aspects of the ongoing conversation about norms of state and official immunity among domestic and international courts. Because immunity norms transect the international and domestic legal spheres, adjudicating immunity claims creates opportunities for dialogue between international and domestic courts about the content of immunity norms, and about which institutions (both domestic and international) have the authority to articulate and apply them.

Part I begins by discussing two challenges brought before international tribunals to the application of foreign state immunity by domestic courts: a challenge brought before the European Court of Human Rights (ECtHR) to the United Kingdom’s determination that Saudi Arabia was entitled to jurisdictional immunity from civil claims for torture (Jones v. United Kingdom), and a challenge brought before the International Court of Justice (ICJ) to Italy’s determination that Germany was not entitled to jurisdictional immunity from civil claims for war crimes (Germany v. Italy). Both of these cases pitted the right of access to a judicial remedy against the norm of state immunity.

Part II examines two domestic cases that followed these international decisions. It discusses the Canadian Supreme Court’s decision in Estate of Kazemi v. Iran, which illustrates normative coalescence around a conception of immunity based on a domestic statute and reinforced by international jurisprudence. It then explores the Italian Constitutional Court’s Judgment 238/2014, which illustrates that international decisions can also provoke “legal protectionism” — the attempt to shield domestic norms and institutions from foreign or international “imports.”

Part III concludes by exploring how arguments based on the supremacy of domestic constitutional law have been used in other cases to justify non-compliance with the decisions of international bodies, even when the constitution explicitly incorporates international law into the domestic legal system. At a minimum, by conceptualizing various legal and political institutions as active interlocutors engaged in a collective process of norm articulation, we can perhaps worry somewhat less about who gets the “final word,” and focus instead on the doctrinal and normative implications of this ongoing conversation for the dignity and well-being of affected groups and individuals.

Number of Pages in PDF File: 19

Disponível em: <http://ssrn.com/abstract=2809829>. Acesso em: 23 jul. 2016.

quarta-feira, 13 de julho de 2016

Journal of Private International Law Conference 2017

by THALIA KRUGER on JULY 9, 2016

The next Journal of Private International Law Conference will take place in Rio de Janeiro, Brazil from 3-5 August 2017. We are now issuing a call for papers on any aspect of private international law. Abstracts of a maximum of 500 words should be sent to jprivintlrioconference2017@gmail.com by 15 November 2016. The previous conferences at Aberdeen, Birmingham, New York, Milan, Madrid and Cambridge have been extremely successful. The conference is the leading opportunity for private international law academics of all levels of seniority from around the world to gather together to advance our subject.

Speakers will not have to pay a registration fee for the conference but will be expected to fund their own travel expenses and accommodation costs. In addition, speakers will be expected to submit the finalised version of their articles for consideration for publication in the Journal of Private International Law in the first instance.


segunda-feira, 11 de julho de 2016

Contestation and Deference in the Inter-American Human Rights System

Jorge Contesse
Rutgers Law School

April 1, 2016

Law & Contemporary Problems, Vol. 79(2), 2016 

Abstract:


This Article discusses the inter-American human rights system’s adjudication model in light of some of the conjectures on subsidiarity as a principle for international governance — that is, the degree of deference it grants to the assessment of a situation by the member state concerned. I inquire about the system’s role as arbitrator of human rights cases within its jurisdiction, examining the dynamics of subsidiarity within the system’s changing context. I find that the Inter-American Court of Human Rights tends to employ a maximalist model of adjudication. Such a model leaves little room for states to reach their own decisions and can be explained as largely resting upon the political context where the Court came to exist, almost four decades ago. I argue that there is a challenge ahead for the Court, namely, to reconcile both claims: on the one hand, states’ demands for higher deference, and on the other hand, the importance of an independent and legitimate regional human rights tribunal.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2799476>. Acesso em: 07 jul. 2016.

sexta-feira, 8 de julho de 2016

Ghent Rolin-Jaequemyns International Law Institute

GET INVOLVED

STUDENT PARTICIPATION IN GRILI CONFERENCES, LECTURES AND RESEARCH MEETINGS

Students are warmly invited to participate in the public events organized by the Institute. An overview of these (past and upcoming) events can be found elsewhere on this website (seeEvents). In addition, highly-motivated students with a keen interest in international law may be allowed on an ad hoc basis to participate in closed seminars organized by the Institute (such as the doctoral seminars forming part of the International Order & Justice Specialist Course - academic year 2015-16) or in the periodic research meetings of the Ghent Rolin-Jaequemyns International Law Institute. The latter meetings are organized approximately once every two months. During these meetings, one or more GRILI researchers will bring a short presentation on a recent or forthcoming publication, on new case-law or evolutions in state practice, or on other aspects of ongoing research. Students interested in participating in these research meetings or in other closed events should submit a request to this end with the GRILI contact persons.

GRILI WANTS YOU

The Institute exceptionally accepts hihgly motivated and outstanding students as 'student-assistants' for a limited period of time, to assist faculty members in their day-to-day activities. Assignments might include: updating course curricula, editorial work, preparation for conferences, etc. The position is remunerated according to University salary scales. Students that qualify for this program will be informed by the dean's office. In addition, master students that are interested in providing research assistance may signal their interest with relevant faculty members of the Institute. Depending on the available funds, they may temporarily be hired as paid job students or may instead act as voluntary collaborators under the supervision of faculty members of the Institute.

LLM

Students that wish to pursue postgraduate studies may opt for one of the manifold general or more specialized LLM programmes offered by academic institutions within or without Europe. Ghent law school itself organizes an exciting LLM programme with a wide range of specialized modules (students can opt for an LLM in International and European law, an LLM in International Business Law or an LLM in European Union law) and co-organizes an MSc-programme in Maritime Science. Ghent students that wish to obtain advice on pursuing an LLM abroad can reach out to GRILI faculty members with relevant expertise. Ghent alumni that pursue an LLM elsewhere are invited to signal this to the GRILI so that we can exchange information with future candidates.

PHD IN INTERNATIONAL LAW?

Do you have a strong interest in human rights law, international criminal law, international environmental law, or other international law themes, as well as a keen appetite for academic research? In that case, pursuing a doctoral degree may be just something for you. Information on the PhD program can be found here and here. In essence, interested candidates can be hired to work on a pre-determined research project, whereby the PhD supervisor has set the general scope of the project and obtained proper funding. Vacancies for such projects may be communicated where appropriate, together with other possible job openings for assistants on the GRILI homepage or on the faculty's dedicated vacancies page. Alternatively, interested candidates can draft a PhD proposal of their own, contact a GRILI faculty member with relevant expertise to discuss the proposal and to act as supervisor, and apply for funding at their own initiative. For Belgian students, the main ooptions concern the (highly competitive!) PhD scholarships for FWO aspiranten (in the past, the deadline for submission was usually set at 1 February of the preceding year; results are communicated late June) or for BOF researchers (2015 deadline was 7 May).

VISITING GRILI


Doctoral or post-doctoral researchers working with another institution that are interested in spending a research stay with the Institute are invited to signal their interest with a GRILI faculty member with relevant expertise. Each year, GRILI accepts a small number of visiting researchers. Preference will be given to strong/promising candidates whose research interests correspond to the research focus of the GRILI members. Visiting researchers will in principle be provided with desk space within the faculty building and will have full access to the library collection. A limited bench fee may apply.
Disponível em: <http://www.grili.ugent.be/for-students/get-involved>. Acesso em: 06 jul. 2016.

quarta-feira, 6 de julho de 2016

Enduring Originalism

Notre Dame Law School

University of Richmond - School of Law

June 10, 2016


Abstract:
Why should anyone be a constitutional originalist today? Why won’t originalism go away? These questions are related and important, and this Article tackles them head-on.
If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers’ law, and any other further lawful changes, as our law today. If we do not, then originalism is not the law and perhaps should be abandoned in favor of what is.
The positive turn points in the right direction but, we argue, does not go far enough. To be sound and complete, a positive-law argument for constitutional originalism must also have firm conceptual and normative grounds. Without conceptual and normative anchors, positive-law originalism is subject to drift in a jurisprudential sea in which “whatever is, is law.” An appropriately anchored theory depends on a defensible concept of the Constitution as positive law to justify a normative conclusion about how faithful participants in our legal system ought to interpret it in developing constitutional law. This Article explains how the classical natural law tradition of legal thought — which is also the framers’ tradition — supplies a solid jurisprudential foundation for constitutional originalism in our law today.

Number of Pages in PDF File: 49


Disponível em: <http://ssrn.com/abstract=2793875>. Acesso em: 04 jul. 2016.