International Law Regime Research Articles

Uranium mining and production

The importance of uranium can be examined from several perspectives. First, natural uranium is a strategic energy resource because it is a key ingredient for the generation of nuclear power and, therefore, it can affect the energy security of a state. Second, natural uranium is also a raw material in relative abundance throughout the world, which can, through certain steps, be transformed into nuclear explosive devices. Thus, there is both an interest in the trade of uranium resources and a need for their regulatory control. The importance of uranium to the worldwide civilian nuclear industry means that its extraction and processing – the so-called front end of the nuclear fuel cycle – is of regulatory interest. Like ordinary metal mining, which is generally regulated within a country, uranium mining must also be considered from the more particular perspective of regulation and control, as part of the international nuclear law regime that is applied to the entire nuclear fuel cycle.

Framework for Achieving Sustainability in Investment Decisions: Reflections on Rio+20

The quest for environmental protection alongside economic development has been one of the prominent themes of political and legal discourse for several decades. This article examines the extent to which the principle of sustainable development (introduced under the Rio Declaration 1992) as a conceptual framework for balancing these competing goals has been integrated within the international investment law regime. It does this by examining decisions of investment tribunals on disputes relating to the legitimacy of government measures on environmental grounds. The analysis evidenced a lack of clear principles and mechanisms for balanced consideration of all competing interests; with the outcome being generally the subordination of environmental concerns to the protection of investors' economic interests under international investment law. This supports criticism that although sustainable development has become one of society's most sought-after goals, progress towards achieving this has been frustratingly slow. Against this background, the article goes on to determine whether the outcomes from the hugely anticipated Rio+20 Conference provided a framework or mechanisms that could promote sustainability integration in investment arbitrations. The article finds that while the outcome document from the main Rio+20 Conference did not provide such a framework, the Declaration from the Judge's Conference, which was organised by UNEP and held simultaneously in Rio, provided some principles and mechanisms that, if fleshed out, could contribute towards better integration of sustainability in the investment regime.

Was Kiobel Detrimental to Corporate Social Responsibility? Applying Lessons Learnt From American Exceptionalism

The recent decision in the US Supreme Court Kiobel case applied the presumption against extraterritoriality towards the Alien Tort Statute, decreasing the potential scope of tort actions that can be made against corporations for severe human rights violations. In light of the growing influence of multinational corporations and the lack of any international law regime to regulate corporate wrongdoing, this decision might be seen as a blow against one of the few potential avenues for justice for those victims of corporate human rights violations. The Alien Tort Statute is not a jurisdictional statute that allows for claims under international law but is rather a uniquely American cause of action unconnected to international law. The question remains whether an extension of American law to provide remedies for severe corporate human rights abuses can be justified in the absence of any such remedies existent in international law. This article will attempt to answer this question applying criteria developed by leading scholars in response to American exceptionalism. It will argue that the Kiobel decision, rather than being detrimental to holding corporations accountable, actually addresses many of the negative aspects of extraterritorial litigation whilst preserving some possibility of remedy for victims of severe human rights violations by corporations.

Public Access to Environmental Information: A Comparative Analysis of Nigerian Legislation with International Best Practice

AbstractPublic access to environmental information is a recurring theme in many international environmental law regimes. Nigeria has ratified and committed itself to many such regimes over the years. And yet, until recently, it had a culture of secrecy in (environmental) governance that was sustained by legislation, with the attendant harm to the environment and public well-being. This changed in 2011, with the enactment of the Nigerian Freedom of Information (FOI) Act. This article uniquely assesses the value of the Nigerian FOI Act in relation to what may largely be considered international best practice principles on public access to environmental information as generally reflected in the UNECE’s Aarhus Convention. Even though Nigeria is not a party to it, it is argued that the Convention is still legally and politically relevant to Nigeria. This comparative analysis will reveal areas where the Nigerian FOI Act aligns with, probably goes beyond, but also falls short of best practice, thus leading to some suggestions for improvement in the Act in order to ensure better public access to environmental information.

Managing Foreign Investment in Agricultural Land in Africa: The Role of Bilateral Investment Treaties and International Investment Contracts

AbstractThis paper seeks answers to three questions. What are the trends in terms of the role of bilateral investment treaties (BITs) and land contracts in addressing complex environmental, social and governance issues implicated in foreign direct investment in agricultural land (agro-FDI)? Are countries in sub-Saharan Africa (SSA) effectively using these two policy instruments to maximize the benefits of agro-FDI and to minimize associated risks and dangers? Do countries in SSA appreciate and are they effectively managing the complex interactions between international investment law, as encapsulated in BITs, and other regimes of international law, particularly the international human rights regime?

Using International Law in Hong Kong Courts: An Examination of Non-Refoulement Litigation

Hong Kong provides an interesting case study on the increasingly dynamic interaction between international law and domestic public law regimes. In a trilogy of cases, the Hong Kong courts have examined the domestic application of the international law of non-refoulement. These decisions addressed the potential influence of international law on constitutional rights, statutory interpretation, principles of judicial review, as well as the scope of the common law doctrine of incorporation. Having regard to common law dualist principles and Hong Kong constitutional law, this paper critically assesses the judicial use of international law in fashioning a domestic law duty of non-refoulement.

The Evolution of International Investment Law and Its Application to the Energy Sector

Foreign investors in the energy sector have long sought to secure guarantees from the host state in order to reduce future risk. The international investment law regime has fundamentally altered the legal framework for investors and host states within the energy sector. This article explores the application of international investment law within the energy sector, describes some common categories of disputes that characterize the energy sector, identifies the main disciplines or standards in investment law, and discusses the remedies available to investors.

Towards a More Constructive Analysis of the Identity of Special Regimes in International Law: the Case of Proportionality

This article inquires into the defining features of special regimes in international law. It starts from the assumption that a special regime, rather than simply a collection of rules and principles, is a variety of language. If international legal scholars wish to come to grips with the identity of special regimes in international law, as the author suggests, they should be less concerned with phenomena such as the resolution of normative conflicts and the systemic interpretation of treaties. Instead, they should study carefully the effect on the communication of legal propositions of transferring a piece of language from one particular part of international legal discourse to another. The argument proceeds in three steps. First, as the author argues, proportionality is a term that may be used to express many different meanings. Because of this, utterers may wish to bolster proportionality propositions in language tailored specifically to support an understanding of their intended meanings. Second, the author provides examples of the usage by international lawyers of the term proportionality in discussions of three different areas of regulation, namely state responsibility law, the law of maritime delimitation, and the law of the European Convention on the Protection of Human Rights and Fundamental Freedoms. As the examples go to show, the supporting language used by utterers in communicating proportionality propositions varies greatly with the particular law discussed. Third, the author explains how such differences help in clarifying the different defining features of different areas of regulation.

Los Derechos Económicos, Sociales y Culturales en la Organización Mundial del Comercio

The article analyzes the complex relationship between the legal regime of international human rights law, particularly under the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the system of the World Trade Organization (WTO). In the first part, the author addresses this issue from a normative perspective and seeks to answer whether the WTO is bound by the ICESCR and if the Covenant can be applied in WTO dispute settlement to justify violations of WTO law. In the second part the author empirically analyzes the extent of the use of human rights arguments in the debates of WTO bodies, using the documents of the WTO database. In the conclusions the author presents the results of his inquiry.

Los Derechos Económicos, Sociales y Culturales en la Organización Mundial del Comercio

The article analyzes the complex relationship between the legal regime of international human rights law, particularly under the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the system of the World Trade Organization (WTO). In the first part, the author addresses this issue from a normative perspective and seeks to answer whether the WTO is bound by the ICESCR and if the Covenant can be applied in WTO dispute settlement to justify violations of WTO law. In the second part the author empirically analyzes the extent of the use of human rights arguments in the debates of WTO bodies, using the documents of the WTO database. In the conclusions the author presents the results of his inquiry.

The Public International Law Regime Governing International Investment. By José E. Alvarez. The Hague: Hague Academy of International Law, 2011. Pp. 502. $25, €18.

The Public International Law Regime Governing International Investment. By José E. Alvarez. The Hague: Hague Academy of International Law, 2011. Pp. 502. $25, €18.

The Place of International Law in the Hierarchy of Valid Norms Under the 2010 Kenyan Constitution

The ratification and promulgation of the 2010 Kenyan Constitution brought with it a hope for the realization of the hopes and aspirations of the Kenyan people. It marked a rebirth of a new nation and marked some considerable changes in the Kenyan legal order. One of the changes introduced by the 2010 Constitution was the introduction, recognition and inclusion of International Law as a source of law in the form and Spirit of Article 2(5) and 2(6) of the Constitution. The recognition of International Law as a source of law in Kenya by the Constitution brought together with it a barricade of interpretative and application questions that generally deal with the place of international law in the hierarchy of valid norms in the Kenyan legal order. This paper attempts to provide an answer to the question of the place of international law in the hierarchy of the valid norms in the Kenyan legal system. The paper seeks to achieve this by analyzing the various theories that seek to explain the relationship between international law and domestic law in the domestic front. In conclusion, it is realized that the international law regime is basically one of the best regimes to guarantee the realization of fundamental rights and freedoms in the domestic sphere and thus, even though jurisprudence on this area is still developing, the Kenyan courts ought to adopt an approach and a system of interpretation of Article 2(5) and 2(6) of the Constitution, that most guarantees the realization and enjoyment of human rights by the Kenyan citizens in the domestic front.

JoséAlvarez,The Public International Law Regime Governing International Investment, The Hague: Pocketbooks of The Hague Academy of International Law, 2011, 502 pp, pb €18.00.

JoséAlvarez<i>,</i>The Public International Law Regime Governing International Investment, The Hague: Pocketbooks of The Hague Academy of International Law, 2011, 502 pp, pb €18.00.

Magic and Modernity in &lt;i&gt;Tintin au Congo&lt;/i&gt; (1930) and the Sierra Leone Special Court

Tintin au Congo was the second album written by Herge in the series that has been hailed to have given birth to the graphic novel genre. It tells the story of the encounter between a young white European reporter and Africa, as imagined by a Belgian author living in Brussels in 1930. Likewise, the judgments of the Sierra Leone Special Court constitute the narrative of an encounter, this time between the international legal community and the grim realities of the civil war that ravaged that African country more than a decade ago. Both encounters can be described as intercultural collisions: much of the original appeal of Tintin au Congo rested in its caricature of African society as backward and in every respect inferior to European civilisation; in the decisions of the Sierra Leone Special Court, there is a similar stark contrast between the culture of international criminal law as the embodiment of justice and humanity on the one hand, and the irrational descent into anarchy and senseless violence on the other. These narratives stand apart in their origins, their style, their aspirations, and yet converge in their intersection of modernity and barbarity. A study of the original Tintin au Congo as published serially in a Brussels newspaper in 1930 and of the transcriptions of the hearings of the Civil Defence Forces Trial in Sierra Leone reveals that, for each, magic is taken as a key to decipher afromodernity and make it comprehensible for the imagined, civilised, western reader. In doing so, each narrator constructs its own identity, in one case European and civilised Belgium, and in the other the universal and rational international criminal law regime.

Liability for Damages in Oil Spill Accidents: Evaluating the USA and International Law Regimes in the Light of Deepwater Horizon

Liability for Damages in Oil Spill Accidents: Evaluating the USA and International Law Regimes in the Light of Deepwater Horizon

The ILO Convention on Domestic Workers: From the Shadows to the Light

On the 100th session of the International Labour Conference, the ILO adopted Convention No. 189 and supplementing Recommendation No. 201 regulating the terms and conditions of work for domestic workers. This was a landmark moment. It was a landmark moment for domestic workers whose participation in the paid labour market and specific working conditions were recognised for the first time in a holistic manner within a legal document. It was also a landmark moment for the international labour law regime that incorporated within the ILO documents a human rights approach, which is sectorally based, stemming from the view that although domestic work is ‘work like any other’, it should also be treated as ‘work like no other’. This piece introduces the ILO Domestic Workers Convention and supplementing Recommendation, points to the differences between these documents and the British legal framework, and calls for a re-assessment of the UK position. It will be structured as follows. Part I begins with a discussion on the social location of those performing domestic work and their precariousness in the British context. Part II introduces the Convention and supplementing Recommendation and the legal framework adopted in these documents, which intertwines civil, social and labour rights on a sectoral basis. Part III concludes.

De Facto Regimes in International Law

The ambiguous position of de facto regimes in international law has long been the subject of scholarly debate and a source of political conflict. An assessment of the current standing of these regimes in international law and the consequences of actions by international actors on this status has, however, been long overdue. The manner in which de facto regimes are regarded internationally has serious consequences for the individuals under the influence of this legal grey area. Therefore, the study into this problem and possible solutions is of great significance. The 2011 developments in Northern Africa underline the need of contemporary research into this area. This essay aims to clarify the position of de facto regimes in international law and the influence on their status by actions of international actors. The author first argues that de facto regimes have rights and obligations under international law, which provide them with (some form of) international legal personality. He then pleads for a reconsideration of the contemporary legal treatment of these regimes. The author argues against the current system of government recognition and proposes a system that better addresses the needs of both de facto regimes and the international community.

Kimberley N. Trapp, State Responsibility for International Terrorism.Problems and Prospects

Ten years after the terrorist attacks of 11 September 2001, the priorities of world politics now appear to shift to different topics and themes. Accordingly, it is time for international lawyers to identify whether the international fight against terrorism has an enduring legacy. The monograph by Kimberley Trapp will be of particular help for this endeavour with respect to the allocation of state responsibility for international terrorism. In this book, terrorism is not presented as a �new challenge� which reveals the inadequacy of existing rules. Instead, Trapp explores the potential of the existing legal rules to hold states responsible for their implication in the commission of terrorist attacks. Her main prism of analysis is the law of state responsibility; not so much in the sense that she would go through the work of the ILC and see how terrorism-related violations of international law could be addressed by the ILC Articles on State Responsibility. Rather, Trapp uses the framework of the law of state responsibility in a constructive and practice-oriented manner to establish how states can effectively be held responsible for their implication in terrorist activities. She follows a pragmatic approach which gets lost neither in discussions about the definition of terrorism nor in the ideological cleavages about the possibility of �state terrorism�. Her definition of terrorism is drawn from existing, as she calls them, �terrorism suppression conventions� (�TSCs�) and supplemented by elements of the practice of both the UN Security Council and the UN General Assembly (at 14�23). With respect to �state terrorism� Trapp pragmatically holds that this notion could fulfil a useful role as it highlights �the possibility of state sponsorship and support for acts� that fall within the overall regime of international law concerning terrorism (at 24).

Bilateral Investment Treaty: A Self-Contained Regime or Inclusion of General International Law?

Bilateral Investment Treaty: A Self-Contained Regime or Inclusion of General International Law?

Sustainability of international trade law: the legality of unilateral trade measures for environmental protection in the GATT/WTO framework

Notwithstanding the intensified trade liberalisation that catalyses economic globalisation, the materialistic foundation of free trade is being changed by issues such as environmental degradation and global climate change. While many believe it is agreeable to seek a balance between trade and the environment, the GATT/WTO as an international law regime governing the multilateral trading system should further ensure the smooth execution of the law to facilitate environmental protection efforts by governments worldwide. In the context of promoting free trade, justifying the unilateral trade measures relating to environmental purposes, including import restrictions/prohibitions, licensing systems and environmental levies, it is one of the instruments which the WTO could employ to achieve the objective of sustainable development as stated in its preamble. Focusing on the evolving constructions of relevant provisions, this paper is to study the recent dispute cases of the legality of these trade-related measures aimed at protecting the environment in GATT/WTO jurisprudence and hence, arriving at the conclusion that the concept of sustainable development is only to some extent implemented by international trade law.