Areas Of International Law Research Articles

The Use of Force for Humanitarian Purposes

Humanitarian intervention remains a very controversial area of international law. For many commentators the paradigm case is that of NATO's 1999 operation over Kosovo, but states are still divided on the legality of this use of force. As Kosovo pursues independence today the question whether it was created by the unlawful use of force is still important. The 2008 conflict between Russia and Georgia in Abkhazia and South Ossetia raises similar questions. The doctrine of humanitarian intervention is strongly opposed by the Non-Aligned Movement who see it as a pretext for intervention by powerful states. Few states openly support the legal doctrine; even fewer have relied on it to justify their use of force. Its legal basis is apparently an interpretation of Article 2(4) of the UN Charter which allows the use of force to further the purposes of the UN, in particular the protection of human rights. The UK is the foremost supporter in public. It has invoked the doctrine to justify the no-fly zones over Iraq, and has made attempts to draw up a legal framework to govern the use of force on behalf of the international community to prevent humanitarian catastrophes. However, in his secret Memorandum on the 2003 use of force against Iraq the UK Attorney-General acknowledged that the doctrine was controversial. The position of the USA remains uncertain: President Obama's 2010 US National Security Strategy is equivocal to say the least.Recently there have been attempts to shift the focus away from this controversial doctrine to a new concept, that of the Responsibility to Protect. This was unanimously supported by the member states of the UN in the Outcome Document of the Millennium Summit, and was hailed as a major advance. There is some disagreement as to whether the use of force in the name of the Responsibility to Protect can be carried out only by the UN Security Council and whether it rules out the unilateral use of force by states. Various bodies within the UN have worked to elaborate on this concept and to further its implementation in practice, but it remains more an aspiration than an existing duty under international law.

Schmitt and the New World Order: A View from Europe

The paper employs Carl Schmitt’s writings in the area of international law and shows that, if re-interpreted in a new light, they can prove useful for a broader understanding of what type of identity is projected internationally by the EU. In particular, this work indicates how the continuum security-identity has been an important aspect of the process of European integration, as can be seen in the informal and formal developments of the CFSP/ESDP and AFSJ, especially its external dimension. Schmitt's concepts of "nomos" and "large space" may still prove useful to reimagine the role of the EU as a 'transnational security entrepreneur', a fluid space that expands constantly and possesses normative claims. Most of the official image projected by the EU institutions is precisely that of a model of regional integration that should be followed all over the world and the idea of 'threat' coming from outside is central to this representation.

Scientification of Politics or Politicization of Science: Reassessing the Limits of the Codex Alimentarius Commission

The proliferating food safety regulatory initiatives at domestic, international, and transnational levels by various actors with different perspectives have raised concerns for their important public health, international trade, and other implications. Standing as the hub of international food safety lawmaking, the Codex faces serious criticisms of its scientific soundness, legitimacy, transparency, and accountability. This paper explores the limits of Codex lawmaking structure and processes by examining whether its institutional design is adequate in terms of producing good governance. Food safety is an area of international law where political and cultural fragmentation collides with deep market integration and trade liberalization. Through a thorough analysis of the recent ractopamine dispute in the context of multilateral cooperation failure and the debates between technocracy and democracy models of legitimacy, this paper however emphasizes the forgotten role of procedural legitimacy in the current discourse, particularly mechanisms for avoiding conflicts of interest and fostering transparency.

A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging between IP, Trade, Investment and Health

The idea of employing conflict-of-laws principles to address competing rationalities in international law is unorthodox, but not new. Research focuses on inter-systemic conflicts between different areas of international law – but has stopped short of proposing conflict rules. This article goes a step further and reviews the wealth of private international law approaches and how they can contribute to applying rules of another, ‘foreign’ system. Against the background global intellectual property rules and their interfaces with trade, investment, health and human rights, the dispute over plain packaging of tobacco products serves as test case for conflict-of-laws principles. It shows how these principles allow a forum to apply external rules – beyond interpretative concepts such as systemic integration.

The Adoption of a Standard Definition of Cultural Heritage

International law plays an important role in improving global governance. International heritage law, however, has received much less attention than other areas of international law. Protecting heritage is vital as it facilitates understanding about the culture and the people of different places. It can also provide a clearer appreciation of the rich history of civilizations on Earth. As part of the United Nations, UNESCO has the most significant part to play in the protection of such heritage and it is responsible for a number of heritage treaties. There are two international instruments in cultural heritage protection that are interrelated in their attempts to develop a coherent international legal framework for the protection of cultural heritage. The Convention Concerning the Protection of the World Cultural and Natural Heritage complemented by the Convention for the Safeguarding of the Intangible Cultural Heritage which in 2003 attempted to improve upon the deficiencies in the coverage of the World Heritage Convention. This paper will analyze a standard definition of cultural heritage to facilitate a uniform understanding of the nature of its subject matter and the development of a coherent international legal framework for its protection.

Requirements for Amicus Curiae Participation in International Investment ArbitrationA Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15

Abstract The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.

Systemic Integration and International Investment Law – Some Practical Reflections

This paper takes an empirical, practical approach to test the proposition that systemic integration leads to greater coherence of international law. It builds on work by Professor Campbell McLachlan and others that specific treaty-based regimes can be located in the broader context of international law through art 31(3)(c) of the Vienna Convention on the Law of Treaties. The paper analyses the Argentina investment treaty arbitration cases involving necessity to establish whether systemic integration principles can be regarded as realistically capable of influencing coherent outcomes in similar cases. It concludes that the evidence does not support the notion of systemic integration as being outcome determinative, and thus does not support the notion of systemic integration as a genuinely cohering mechanism for international investment law. What does this mean for how we think about international law generally? A positivist account of international law is opposed. The Argentina necessity cases support a more realist account of “practical reasoning”, which is perhaps more helpful than systemic integration theory in understanding the jurisprudence of international law. It is helpful to have procedural mechanisms so that tribunals and other international decision-makers can have regard to other areas of international law, and proper that these be provided for expressly, as in art 31(3)(c). However, the strong form of the systemic integration argument – which elevates those procedural mechanisms into a deductive argument that international law is a coherent whole – should be resisted. Whilst it is likely that the doctrine of necessity for international investment law will be synthesised over time as leading awards, textbook opinion and state practice converges on the nuances of an approach as applied to concrete economic situations, this is a messy and practical, and not an endogenous and deductive, endeavour.

The International Tribunal for the Law of the Sea: The Legal Framework and a Critical Review of its Acceptance

Present research paper is focused on the ITLOS, an institution established under UN Convention on LOS. Considering that up to now 162 States are Parties to the UN Convention on LOS, it is of a specific importance whether ITLOS is accepted or not. Along with that, the international LOS has been one of the most dynamic areas of international law and the need for a radical development was attained at UNCLOS III, in the form of the UN Convention on LOS. This LOS Convention was intended to have a major, long-term impact upon the LOS though many States held back from ratifying the Convention and accepting the institution founded by the LOS Convention. ITLOS was constituted under the Annex VI of the UN Convention on the LOS and functions pursuant to the provisions of the LOS Convention, the Statute of the ITLOS and the ITLOS frames rules for carrying out its functions. The ITLOS applies the LOS Convention and other rules of international law that must be compatible with the LOS Convention. Besides the initially attempts for a comprehensive framework for the world’s oceans, the LOS Convention was opened for signature on 10 December 1982 and entered into force on 16 November 1994. Subject of the first chapter is a brief summary of the ITLOS and the treaty upon which it was established. While considering the significance of this institution, the debate for ITLOS acceptance and objection arguments takes a particular importance. The second chapter clarifies the main obstacles for the acceptance of the ITLOS, by comparing the ITLOS to the ICJ and analyses the right of the States Parties to settle their dispute by bilateral agreements. The third chapter gives the dissenting opinions of some States on the ITLOS and the LOS Convention, explaining their longstanding opposition to the ratification of the LOS Convention. The interpretation will be mainly based on the LOS Convention, ITLOS Statute, ITLOS Rules and case laws and also other international treaties related to LOS; additionally one has to bear in mind that the LOS Convention has provided the four mechanisms for settling the disputes between States Parties. Based on this approach, present paper will show a critical review of the acceptance of the ITLOS from the date of the signature of the LOS Convention to our days.

Realism, Utopia and the Future of International Environmental Law

In spite of its impressive development at the level of treaty law and soft law, international environmental law remains a weak and under-developed body of law. This is due especially to the persistent institutional “deficit” and lack of compulsory dispute settlement mechanisms that hamper effective monitoring and implementation of environmental standards. To overcome these limits, in a perspective that avoids wishful thinking, such as the project of an “international court for the environment”, and the hard realism of an unfettered sovereignty over the natural resources, this paper argues for a “realistic utopia” that recoups the original idea of the natural environment as a “common good”. Congruent with this idea is the re-discovery of the category of erga omnes obligations to be administered in the interest of the international community as a whole. At the normative level, this entails a re-conceptualisation of “sovereignty” in terms of responsible exercise of state powers over natural resources located in the national territory and over activities capable of impacting on the global environment, so as to make such exercise responsive and functional to the achievement of the goal of conserving the quality of the environment that sustain our life. At the institutional level this approach invites two responses: rejection of the need for reform of global institutions and reliance instead on market mechanisms of self-regulation and transnational private enforcement; or a search for reform of the institutional system of environmental governance in view of creating effective multilateral institutions that can mirror what has been done in other areas of international law, such as trade, investments and human rights. This paper argues that the two approaches are not mutually exclusive. They should be complementary because the first one can hardly work without the other.

'The Secret of Tomorrow': International Organization through the Eyes of Michel Virally

The contribution of the late French Professor Michel Virally to international law is vast and touches on most areas of this discipline. Yet, Virally devoted particular attention to two main areas of inquiry, namely the philosophy of law and international organization. I have ana lysed Virally's contribution to the former elsewhere. This article focuses on his contribution to international organization widely understood as the study of international organizations and that of world organization. Virally considered international organization as a new political phenomenon, which would shape the dynamics of the two main driving forces of the second half of the 20th century, i.e., the East-West and the North-South divides. He developed a sophisticated theory of international organizations, with a strong functional focus. He used this theory to shed light on questions such as the management of international conflicts, the decolonization process, or the increasing influence of newly independent and developing states. His views on how these forces would shape the evolution of international law were far-sighted and allowed him to identify, with remarkable accuracy, the areas of international law where development considerations would require deep transformation, namely trade, investment, and the environment. In this regard, Michel Virally is also our contemporary and his contribution remains fully relevant for the analysis of international organization at large.

The Statehood of Palestine: International Law in the Middle East Conflict (review)

Reviewed by: The Statehood of Palestine: International Law in the Middle East Conflict Jean Allain The Statehood of Palestine: International Law in the Middle East Conflict, by John Quigley. Cambridge: Cambridge University Press, 2010. 326 pp. $27.99. The Statehood of Palestine is a compelling study which peels away many of the layers of propaganda and rhetoric related to Palestine as a State. While the author provides a number of fundamental insights as to the legal status of Palestine from the League of Nations era onwards, much of the book is dedicated to providing a descriptive narrative and little to providing the legal analysis of Palestine as a State. John Quigley, Professor of Law at Ohio State University is a leading expert in the area of international law where it relates to Palestine, having devoted much of his academic life to the issue: The Statehood of Palestine is his third related monograph after Palestine and Israel: A Challenge to Justice, 1990 and A Case for Palestine: An International Law Perspective, 2005. In the Preface of The Statehood of Palestine, Quigley writes, "the identity and character of Palestine have long been an enigma," and thus he turns to describe, in the first three sections (fifteen chapters), the movement from Ottoman control, through the League of Nations Mandate and the post-Mandate war of 1948, then going on to deal with the international reaction to attempts to forge Palestinian statehood. It is only in the last fifty pages that Quigley truly moves away from description to an analysis of the claims of statehood of Palestine as against the international legal standards manifest in what may be termed the Montevideo Convention criteria. Those criteria, first set out in 1933, describe a State as having a permanent population; a defined territory; a government; and the capacity to enter into relations with other States. As the Montevideo criteria are the basis upon which claims of Statehood are made and either accepted or rejected, better would have been to introduce these early in the text to allow readers to make their own assessment as to author's consideration of events and pronouncements. As to the fundamental insights provided, Quigley notes that "Palestine presents one of the more curious episodes in state formation" (p. 247). That [End Page 188] formation develops from a province of the Ottoman Empire which is then occupied by the British. Having made a number of war-time promises, the British government favored the Balfour Declaration and had its language inserted in its Mandate for Palestine under the League of Nations. The Mandate for Palestine allowed for a critical mass of Jewish immigrants which, in the aftermath of the Second World War, would prove fundamental to the creation of the State of Israel. Having lost the will to manage Palestine, Britain gave up the Mandate in 1948, and though the United Nations put forward partition plans, it was all for nought. By 1949 the dust had settled by way of an armistice with three States in control of Palestine: Israel as a newly recognized State and Egypt and Jordan in military occupation. It is here that Quigley gets to the heart of the issue and provides insightful understanding. In my 2004 International Law in the Middle East, I wrote that the creation of Israel was at variance with international law, as territorial acquisition by force was by 1948 no longer permissible. Quigley demonstrates that analysis to be faulty. While a State is prohibited from taking territory from another State by force, international law is silent on what transpires within a State when it breaks up. Like the expansion of Croatia down the Dalmatian coast and Serbia along the Romanian and Hungarian borders to the north at the expense of Bosnia, Israel, as Quigley rightly points out, is a secessionist State. It should be emphasized that Quigley's overall thesis is that Palestine is a State and that Israel can be deemed to have seceded from Palestine, as, at the end of the Mandate, Palestine was once more the State between the Jordan and the Mediterranean. Thus at the time of the armistice in 1949, in legal terms, Palestine had imploded, leaving three entities...

International Courts and the European Legal Order

The growth of a range of different areas of international law gives rise to the possibility of conflict between them. International courts and tribunals created by one branch of international law may be called upon to adjudicate in other areas of the discipline. The risk of conflict presents a particularly acute problem to the EU legal order, because the Court of Justice of the European Union sees itself as the final, and exclusive, authority on questions of interpretation of EU law. On two occasions the Court has issued opinions prohibiting EU Member States from signing agreements creating international courts, because those courts’ roles would necessitate construing EU law and their composition would mean they could not guarantee the ‘homogeneity’ necessary to EU law. The more recent of these opinions, concerning the European and Community Patents Court, sets an unusual legal test for the consistency of international tribunals with the EU legal order that, taken to its logical conclusion, would preclude several well-established international courts and tribunals to which EU Member States are parties. Ultimately this standard may fetter development of EU law, and the ECJ would do well to adopt a more flexible approach.

Between Myths and Norms: Constructivist Constitutionalism and the Potential of Constitutional Principles in International Law

The aim of this article is to restate, refine and defend the constitutionalist argument in international law. As a basis for a more nuanced approach, the contribution sorts the phenomena to which the constitutionalization thesis refers. Secondly, it analyzes methodological and doctrinal features of constitutionalist approaches to public international law and clears up some myths in and about international constitutionalism. Finally, the text focuses on presumptions and burdens of justification established by various judicial institutions. They seem to express constitutional concerns in different areas of international law. It is submitted that these presumptions and burdens of justification are plausibly backed by processes of identity change and argumentative self-entrapment. On the basis of constructivist approaches in International Relations, these processes can be understood as creating the normativity of constitutional arguments. The special character of their normative force may be explained by classifying them as principles in contrast to strict rules.

Fragmentation, Coherence and Synergy in International Law

International law has grown in volume in recent years, and changes in global society are likely to increase the need for international law. It is easy to observe increasing overlap among different areas of international law: the international legal terrain is becoming more congested. With congestion comes collision. This article examines the occasions for collision, the meaning of collision, and the possible responses to collision. Collision of this type can occasion concern, as connoted in the term often used for this phenomenon: fragmentation, which refers to the overlap between the rules of different areas of international law, in the context of decentralised production of international law. But collision is less often considered as an occasion for synergy—in which the interaction of different areas of law produces better outcomes than if there were no interaction.

Implications of international law for the treatment of cancer: The Single Convention on Narcotic Drugs and the TRIPS Agreement

The development, manufacture, trade and distribution of medicines all take place within a web of international legal obligations that states have accepted under a range of multilateral, plurilateral and bilateral agreements. International law can operate either to facilitate or hinder access, depending on how it is developed and implemented. This article examines two areas of international law that are relevant to cancer treatment: the international drug control system, which regulates opioid analgesics; and the World Trade Organization's Trade-Related Aspects of Intellectual Property Agreement. This article outlines recent developments in relation to both, including in the activities of the Vienna-based agencies that collectively oversee the implementation of the Single Convention on Narcotic Drugs, and in the negotiation of the recent United Nations General Assembly Political Declaration on Non-communicable Diseases. While underlining the importance of law, this article notes that battles over law should not distract from the importance of other essential efforts to enhance access to medicines within the context of the strengthening of health systems.

Rethinking sovereignty in international fiscal policy

AbstractThe power to raise taxes is a sine qua non for the functioning of the modern state. Governments frequently defend the independence of their fiscal policy as a matter of sovereignty. This article challenges this defence by demonstrating that it relies on an antiquated conception of sovereignty. Instead of the Westphalian sovereignty centred on non-intervention that has long dominated relations between states, today's fiscal interdependence calls for a conception of sovereignty that assigns duties as well as rights to states. While such a circumscribed conception of sovereignty has emerged in other areas of international law in recent years, it has yet to be extended to fiscal questions. Here, these duties arguably include obligations of transparency, of respect for the fiscal choices of other countries, and of distributive justice. The resulting conception of sovereignty is one that emphasises its instrumental as well as its conditional character. Neither state sovereignty nor self-determination is an end in itself, but a means to promoting individual well-being. It is conditional in the sense that if states do not live up to their fiscal obligations towards other states, their claims to autonomy are void.

The Pink Elephant in the Corner of the Room that Nobody Wants to Acknowledge: The Dichotomy of Multinational Corporations, Instruments of Foreign Policy, Development, and Impediments to Corporate Criminal Prosecutions for Gross Human and Humanitarian Rights Violations

The accompanying Article provides a comprehensive analysis of the debate over whether multinational corporations are socially responsible for advocating human and humanitarian rights in their foreign jurisdictions of operation. Furthermore, this Article will address the protections from human and humanitarian rights criminal prosecution multinational corporations enjoy under their complex network of business model, logistical, and managerial infrastructure. The issues will be addressed and discussed giving the pros and cons of a current lack of International Criminal Law oversight over multinational corporations. The significance of human and humanitarian rights criminal violations by multinational corporations in their foreign jurisdictions of operations are illustrated by a discussion of several cases analyzed in this Article. This Article drives new analytical avenues in areas of International Law concerning corporate social responsibility abroad. From The Slavery Convention and The Nuremburg Trials to the ongoing present, an examination will be made of the avenues open for criminally prosecuting multinational corporations that commit criminal violations of international law human rights and humanitarian law. From domestic conditions on the grounds of these foreign jurisdictions of operations to a multinational corporation’s home state’s domestic laws, an examination will be made into what impediments prevent criminal prosecutions of multinational corporations. Inquiries concerning the economic theories and the broad public policy context in which governments exercises their regulatory powers over multinational corporations will be discussed. Furthermore, we will examine the multinational corporation’s consequences of leveraging strategy for fundamental conceptions of economic success promoted by assuring a laissez-faire or aiding and abetting attitude within their foreign jurisdictions of operation. In brief, the Article contributes a framework for discussion centered around resolving critical, but hidden public policy challenges regarding the role and responsibilities of multinational corporations in their foreign jurisdictions and whether they should be held criminally liable at international law for gross breaches of the domestic populations human and humanitarian rights.

International Courts and the European Legal Order

The growth of a range of different areas of international law gives rise to the possibility of conflict between them. International courts and tribunals created by one branch of international law may be called upon to adjudicate other areas of the discipline. The risk of conflict presents a particularly acute problem to the EU legal order, because the Court of Justice of the European Union sees itself as the final, and exclusive, authority on questions of interpretation of EU law. On two occasions the Court has issued opinions prohibiting EU member states from signing agreements creating international courts, because those courts’ roles would necessitate construing EU law and their composition would mean they could not guarantee the “homogeneity” necessary to EU law. The more recent of these opinions, concerning the European Community and Patents Court, sets an unusual legal test for the consistency of international tribunals with the EU legal order that, taken to its logical conclusion, would preclude several well-established international courts and tribunals to which EU member states are parties. Ultimately this standard may fetter development of EU law, and the ECJ would do well to adopt a more flexible approach.

Challenges to Sustainability in Africa

Patricia Kameri-Mbote is Professor of Law at Strathmore University. She previously worked as an Associate Professor of Law at the School of La w, University of Nairobi and is an advocate of the High Court of Kenya. She studied law in Nairobi, Warwick, Zimbabwe and Stanford and has served as a Policy scholar at the Woodrow Wilson International Center for Scholars. She has published widely in the areas of international law, environmental law, women's rights and property rights.

GLOBAL ETHICS AND HUMAN RIGHTS: A REFLECTION

ABSTRACTThis paper examines the contributions that the international human rights community can make to the definition and framing of a practically effective global ethic, especially in light of ongoing concerns about social and economic justice, environmental issues, and systematic abuses of vulnerable populations. The principal argument is that the human rights movement in all of its dimensions (moral, legal, political) provides the pivotal foundation for a practicable global ethic now and for the foreseeable future. Evidence for the truth of this claim is discerned in the movement's contemporary efforts to intersect explicitly with other areas of international law and politics. Examples adduced include developments with respect to the rights of indigenous peoples, decision making about the environment, and transitional justice.