Different Areas Of International Law Research Articles

Can Acta Jure Gestionis Be Attributable to the State? A Restrictive Doctrine of State Responsibility

Abstract The distinction between acta jure imperii and jure gestionis, while playing a pivotal role in the law of state immunity, appears alien to the law of state responsibility. However, recent practice has shown conceptual overlaps between these different areas of international law. The sovereign/commercial dichotomy has informed the attribution of parastatal entities’ conduct to a state under Article 5 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). More precisely, acta jure gestionis have been excluded from the scope of attributable conduct. Against this backdrop, this study investigates whether, and to what extent, the distinction between acta jure imperii and jure gestionis dictates the interpretation and application of Article 5 of ARSIWA. We conclude that the distinction does have relevance in this context, although Article 5 was not designed to preclude the attributability of commercial acts. However, its obscure wording has allowed subsequent practice to overly narrow the scope of attributable conduct. This study, critically analysing a restrictive doctrine of state responsibility, aims to provide a more accurate and desirable conception of the rule and a clear and detailed guideline on when the commercial act of parastatal entities can be attributable to the state.

Conferences of the Parties beyond international environmental law: How COPs influence the content and implementation of their parent treaties

AbstractConferences of the Parties (COPs) are intergovernmental meetings established by treaties to review and promote the implementation of their provisions. The literature on COPs is limited and almost exclusively based on multilateral environmental agreements. The article departs from this scholarship to show that COPs are now present in different areas of international law and to discuss some of the ways in which these bodies influence the conventions that establish them. In particular, it considers how COPs affect the content and the implementation of their parent treaties. The article focuses on the bodies established by four treaties selected as case studies: the WHO Framework Convention on Tobacco Control; the Convention for the Protection and Promotion of the Diversity of Cultural Expressions; the Convention on Cluster Munitions; and the United Nations Convention against Corruption. Based on the examination of the normative decisions adopted by these organs, the article argues that COPs’ activities (i) specify and develop the content of their parent treaties by setting procedural and substantive standards that states parties must meet to comply with their obligations; and (ii) support the implementation of their parent treaties by seeking to strengthen their social and political position, facilitating the adoption of measures by states parties. COPs pursue this second goal by building momentum in favour of the implementation of their treaties, stigmatizing their adversaries, and connecting their conventions with established international legal narratives.

An Ecosystem Approach in International Environmental Law Relevant to Transboundary Freshwater Ecosystems

Abstract A global water crisis with far-reaching and interconnected impacts threatens the world. Healthy ecosystems are degrading, and access to a sustainable water supply is increasingly inequitable within and between States. The ecosystem approach has emerged as a concept to transform ecosystem management and prioritise equitable participation and outcomes for vulnerable societies but its normative content and international legal status remain unclear. This paper draws from international environmental and human rights law to ask what are the normative elements of an ecosystem approach in the context of international law relevant to transboundary freshwater ecosystems and what is the added value of an ecosystem approach for water law? It then explores the United Nations Economic Commission for Europe (UNECE) environmental instruments as a structurally distinct regime and demonstrates how the regime provides the strongest clarification of an ecosystem approach in international water law. Finally, it demonstrates how the ecosystem approach stimulates mutual supportiveness between different areas of international law.

Public international law, international taxation and tax dispute resolution

ABSTRACT International tax law has not been discussed much by the lawyers involved in public international law. Due to this, there exists a gap, as presently, developments in international law do not correspond to the constant developments in international tax law. This article seeks to highlight the challenges that would arise from the normative expansion of taxation law. Scholars have highlighted the need for a multilateral tax treaty. However, such attempts made by the UN and OECD have failed due to difficulties in ensuring the distribution of taxation power between the source and residence states. This issue becomes more prominent for digital economy taxation, as the digital firms may trade and operate without any physical presence in a state. The present set of proposals suggests introducing new rules for fair allocation of taxing rights and duty on the part of states to tax at a minimum rate. To this end, OECD has introduced the BEPS Inclusive Framework that would include even non-OECD members in decision making. This article underlines the impact of international tax law on different areas of international law and further points out the best practices in trade, investment, and international law so as to bring them in line with the developments in international tax law.

The Immunisation against COVID-19 as a Global Public Good

In 2020, COVID-19 emerged and spread rapidly across the globe. Soon thereafter, the World Health Assembly (WHA) proclaimed the immunisation against COVID-19 a Global Public Good in its Resolution WHA 73.1. What the concept of Global Public Good (GPG) entails, both generally, and, in particular with respect to international law, are far from settled. This article aims to further develop an understanding of this concept and to frame its meaning in the context of immunisation against COVID-19. It argues that while the concept originated in economics, it carries normative value and has implications for different areas of international law. The Resolution concretises a duty to cooperate in the context of immunisation. Furthermore, it requires us to think beyond state borders as well as beyond states’ responsibilities and market mechanisms. This article will explore the repercussions of the normative concept of Global Public Goods within the framework of human rights law, international security law, international economic law, and intellectual property rights. The reference to the concept of Global Public Goods provides an overarching framework in a matter that concerns the international community. Thus, it requires us to develop and provide for international instruments of concrete collective action.

The Dynamics of International Law Redux

Abstract Law is constantly caught between stasis and dynamism, between the production of legal certainty and the adaptation to a changing environment. The tension between both is particularly acute in international law, given the absence of legislative mechanisms on the international level and the high doctrinal thresholds for change through treaties or customary law. Despite this apparent tendency towards stasis, international law is changing frequently and rapidly in many areas, though in ways that are not well understood. This article seeks to begin an inquiry into these ways of change, starting from two vignettes of recent change processes and presenting a number of conjectures about core elements of a conceptualization of change in international law. The resulting picture reflects significant variation across different areas of international law, multiple paths of change outside traditional categories, and states in different—and not always central—roles. Much change observed in contemporary international law travels on paths and is advanced by authorities created by social actors and their practices relatively independently from doctrinal representations. This presents a challenge for doctrinal categories, and it should provoke a broader, empirical reconstruction of the social life of international law today—a far more dynamic but also less orderly life than typically assumed.

Designing for the Best Composition of International Courts: The Value of Diverse and Specialised International Law Expertise on the Bench

The book chapter discusses the appropriate types of expertise that should be available in the composition of international courts. The main argument is that the international bench needs to include judges with diverse and specialised expertise. For this reason, the concept ‘competence in international law’ as a statutory requirement for nomination and election of judges, can be construed broadly seeking out individuals who not only have recognised competence in international law stricto sensu but also strong complementary knowledge in specialised area(s) of international law relevant to a given court’s judicial work. Judges who are conversant with both general and special aspects and areas of international law are well placed to navigate the complexity and density of international law entrenched in disputes submitted for international adjudication. The first part of the discussion engages with the idea that general international courts value expertise of judges in specialised areas of international law and that specialised international courts value judges with competence in international law. Existing statutory election requirements may accommodate this suggestion. The second part of the discussion explores the detailed expertise requirements incorporated in the statutes of certain, new international courts. Novel developments suggest a turn towards favouring and quantifying required expertise in different areas of international law when deciding the overall composition of a court.

The Immunisation against COVID-19 as a Global Public Good

Since early 2020, the world has witnessed the emergence and rapid spread of COVID-19 all across the globe. Soon after, the World Health Assembly proclaimed the immunisation against COVID-19 as a Global Public Good in its Resolution WHA 73.1. Implications of the reference to this concept in general and with regard to international law, in particular, are far from settled. This article aims at understanding the concept of Global Public Good and to frame its meaning in the context of immunisation against COVID-19. It will be argued that while it was originated in economics, it carries a normative value with implications for different areas of international law that cascades from the normative concept of Global Public Goods. The Resolution concretises a duty to cooperate in the context of immunisation. It further requires us to think beyond states’ borders and regarding states’ responsibilities and market mechanisms. The article will explore the repercussions on the framework for human rights law, international security law, international economic law and intellectual property rights. The reference to the concept of Global Public Goods provides for an overarching framework in a matter of concern to the international community, which requires us to develop and to provide for international instruments for concrete collective action.

Editorial: Populism and International Law: Global South perspectives

The rise of populist governments around the world has been a source of concern for international legal scholars. As a result, the field of international law witnesses a range of academic publications analyzing recent populist movements and their impact on international law as we know it. These analyses have focused on different areas of international law and their institutions, such as trade, environment, human rights, labor and migration. Across these different contexts, populism has been equated with authoritarianism, and a fundamental challenge to a liberal international legal order. Further, international law is often approached in a binary/antagonistic fashion, either as a tool to ban populist-driven policies or as an instrument to allow such policies to thrive, and states are seen as part of a binary of either populist and challengers to international law, or democratic and favoring liberal internationalism. This scholarship therefore, while valuable, tends to miss more nuanced accounts of co-production of domestic regime (il)legitimacy and international ordering as part of a continuum that does not fit “either/or” accounts.

EL ASALTO DE TRUMP AL DERECHO INTERNACIONAL: SU IMPACTO EN LA OMC

La asunción al poder del presidente de los Estados Unidos Donald J. Trump significó un giroradical tanto en el plano interno como en el internacional, que contribuyó a exacerbar las divisionesen la política doméstica estadounidense, a la vez que trajo aparejadas importantes consecuenciasnegativas para el multilateralismo y los regímenes jurídicos internacionales vigentes. Este ataque,que se manifiesta en diferentes áreas del derecho internacional, tiene entre sus objetivos a diversasorganizaciones internacionales, cuya muestra más reciente ha sido la suspensión de fondos a laOrganización Mundial de la Salud (OMS) en medio de la pandemia del coronavirus. LaOrganización Mundial de Comercio no solo no ha escapado a esta embestida, sino que ha sido unode los blancos particularmente elegidos por la administración estadounidense. Este trabajo analizael ataque de Trump a la OMC, sus consecuencias y las posibles salidas a este impasse.

Atrocity Speech Law: Addressing Hate that Does Grave Harm

Atrocity Speech Law:Addressing Hate that Does Grave Harm Carol Pauli (bio) Gregory S. Gordon, Atrocity Speech Law: Foundation, Fragmentation, Fruition (Oxford Univ. Press 2017), ISBN 9780190612689, 464 pages. I. INTRODUCTION Gregory Gordon's book, Atrocity Speech Law, is a groundbreaking work that has arrived when it is urgently needed, in the midst of rising hateful rhetoric.1 Meticulously researched and thoughtfully written, the book exposes maddening gaps in international law regarding dangerous speech. It then proposes a bold remedy: an innovative, holistic framework that streamlines, coordinates, and expands the existing laws. Against the current backdrop of hostility—with its angry assertions of racial and national supremacy, terrorist recruitment videos, shouts of rage at refugees, and dizzying shift in the tone of political discourse—this book is a crucial response to speech that can trigger atrocity. In it, Gordon lays out the legal boundaries needed for effective deterrence, and he modestly urges other scholars to build on his framework. This essay takes up his invitation. Gordon writes from his frustration as a prosecutor with the International Criminal Tribunal for Rwanda, the African nation where alarming media messages stirred thousands of ordinary people to take up machetes and slaughter their neighbors, some 800,000 innocent people, while the world stood by as though [End Page 718] powerless.2 More than twenty years later, Gordon shows that international law still lacks the clarity and strength to deter such incendiary speech. Gaps in the "unshapely and disjointed"3 laws leave areas of impunity. Even where the law sets out crimes, the definitions and elements of the offenses may be too fragmented to alert would-be inciters, persecutors, and instigators to their own criminal liability. These inconsistent laws also threaten free expression because they fail to stake out protected areas for legitimate protest. Some international court decisions have even emboldened dictators to crack down on dissent, perversely turning international law into a weapon against their own vulnerable citizens.4 To fix these defects, Gordon first establishes a new, unifying conceptual category, "atrocity speech law."5 This term brilliantly captures the essence of the challenge. He identifies four speech crimes from different areas of international law: inciting others to commit genocide, instigating an international crime, ordering a military—or even non-military—subordinate to commit an international crime, and persecuting members of a group on discriminatory grounds.6 Gordon rethinks the relationships among these offenses and draws a new, comprehensive architecture, a "Unified Liability Theory," culminating in a proposed treaty and a draft revision to the Rome Statute of the International Criminal Court. This essay takes a next step, making suggestions and posing questions aimed at applying the deep and bitter lessons from the past century to the mounting challenges of the new one. Part II briefly describes some of the international law troubles that Gordon documents in detail. Part III sketches Gordon's Unified Liability Theory in order to highlight several of its important contributions. Part IV considers today's fast-changing technology and political rhetoric. It urges adopting Gordon's well-founded work and extending his rigorous method of analysis. II. GAPS AND CONTRADICTIONS IN ATROCITY SPEECH LAW In his first chapter, Gordon tells the story of a German mother in 1943 who comes upon a ragtag group of terrified Jewish children and brings them home to feed, comfort—and shoot in the head one by one.7 She later explained, "As was told to me, I had to destroy the Jews."8 The incident illustrates the bewildering horror of Gordon's subject: the capacity of speech—"as was told to me"—to excite monstrous acts. How can international law be confused about speech that leads to grave crimes—even genocide, "the crime of crimes"?9 In Atrocity Speech Law, Gordon shows how, tragically, the very enormity of the wrong is at the heart of [End Page 719] the legal defects. In the ashes of World War II, Allied nations realized that the Holocaust had outstripped the criminal laws that then existed. Although a new word, genocide, was spoken during oral arguments in the International Military Tribunal at Nuremberg, the crime was not yet on the books.10 Gordon traces the way diverse...

Fair and Equitable Benefit-Sharing: History, Normative Content and Status in International Law

This entry will discuss the widespread diffusion of the concept of fair and equitable benefit-sharing in different areas of international environmental law (notably, but not limited to, biodiversity) and its linkages with international human rights law. It will then suggest that notwithstanding different articulations of benefit-sharing in different areas of international law, a common normative core can be identified on the basis of converging interpretative materials. The entry will conclude by discussing the status of fair and equitable benefit-sharing in international law and identifying outstanding research questions.

An Interdisciplinary Model for Mapping the Normative Diffusion of Fair and Equitable Benefit-Sharing

Fair and equitable benefit-sharing is emerging in various areas of international environmental law (biodiversity, oceans, climate change, water, food and agriculture), as well as in international processes on human rights and corporate accountability. Benefit-sharing seeks to fairly and equitably allocate economic as well as socio-cultural and environmental advantages arising from the conservation and sustainable use of natural resources, or from their regulation, among different stakeholders. Notwithstanding mounting evidence that benefit-sharing is emerging in different areas of international law, varying understandings of the concept are articulated and no systematic study discusses its evolution and diffusion. This paper proposes norm diffusion as a lens for understanding how fair and equitable benefit-sharing is articulated in different sites, and discusses mechanisms, frames and actors in an interdisciplinary perspective by drawing on literature from sociology, international relations and law. A model for mapping norm diffusion in a dynamic way, considering whether actors, mechanisms and paths are active or passive, formal or informal, top-down, bottom-up or horizontal is proposed. Framing is discussed as crucial to understanding the content and embeddedness of a norm. The article uncovers underlying similarities in work on norm diffusion across the disciplines considered, and reflects on the value of an interdisciplinary approach that encourages legal scholars to consider the implications of power structures in the diffusion of law, while the nuances of legal knowledge may lead other social scientists to revisit accepted findings on norm diffusion. An in-depth understanding of how benefit-sharing is diffusing is argued to be an indispensible step before an informed assessment of its potential to promote the protection and sustainable use of natural resources in a fair and equitable manner in the face of power asymmetries.

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.

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.

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.

INCOHERENT AND INEFFECTIVE: THE CONCEPT OF PERSISTENT OBJECTOR REVISITED

A rule of customary international law is binding upon all States. One controversial question is whether a State should be permitted not to be bound by such a rule in the event that it objected to it in the early stage of its formation and did so constantly thereafter. This is the theory of the ‘persistent objector’. Articles recently published about the theory focus on its specific application in different areas of international law, including international investment law,1 international humanitarian law2 and human rights law.3 The present article intends to examine the concept of persistent objector in general international law.4

Beyond Compliance: Rethinking Why International Law Really Matters

AbstractThe conceptual, and more recently empirical, study of compliance has become a central preoccupation, and perhaps the fastest growing subfield, in international legal scholarship. The authors seek to question this trend. They argue that looking at the aspirations of international law through the lens of rule compliance leads to inadequate scrutiny and understanding of the diverse complex purposes and projects that multiple actors impose and transpose on international legality, and especially a tendency to oversimplify if not distort the relation of inter‐national law to politics. Citing a range of examples from different areas of international law – ranging widely from international trade and investment to international criminal and humanitarian law – the authors seek to show how the concept of compliance (especially viewed as rule observance) is inadequate for understanding how international law has normative effects. A fundamental flaw of compliance studies is that they abstract from the problem of interpretation: interpretation is pervasively deter‐minative of what happens to legal rules when they are out in the world, yet ‘compliance’ studies begin with the notion that there is a stable and agreed meaning to a rule, and we need merely to observe whether it is obeyed.Policy Implications Looking at the aspirations of international law through the lens of rule compliance leads to inadequate scrutiny and understanding of the diverse complex purposes and projects that multiple actors impose and transpose on international legality, and especially a tendency to oversimplify if not distort the relation of international law to politics. States, as well as other actors – corporations for example – instead of simply ‘complying’ with international legal rules may bargain in light of them, and around them. Given that there are transaction costs of negotiating, the rules will have an effect on the bargain, but one that will not be observed if what one is focused on is rule compliance. In altering the focus and agenda of states and nonstate actors in dealing with conflict and post‐conflict transitions, international law may have raised expectations too high that where politics and economics, and for that matter moral idealism, have failed to solve enduring human problems, law will succeed. International law may create benchmarks for a wide range of private decision making, and this even when in the first instance the rules in question have not been explicitly addressed, at least not traditionally to nonstate actors. Such benchmarks may affect to whom firms lend, with whom they deal as suppliers or subcontractors, design specifications for products such as ships and aircraft, the terms of such diverse transactions as the adoption of children, the transportation of hazardous products and the transfer of high technology. Private actors may simply adopt these benchmarks as common terms of commerce regardless of the extent to which they have been ‘implemented’ by states. International law (norms and/or institutions such as courts and tribunals) may shift in whole or in part decision‐making, interpretative and/or legitimating power from one set of elite actors to another (for example from diplomats, foreign policy analysts and military planners to legal professionals such as judges, lawyers and law professors).