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1842. Tana Johnson. Organizational Progeny. Why Governments are Losing Control over the Proliferating Structures of Global Governance
- Author:
- Matthias Goldmann
- Publication Date:
- 04-2015
- Content Type:
- Journal Article
- Abstract:
- According to mainstream functionalist theories of international law and relations, international organizations are vehicles of states, tied to their masters by meticulous legal instructions. As Jan Klabbers recently pointed out in this journal,1 functionalism was based on the idea of establishing peace by channelling international relations into the purportedly technical, a-political realm of international organizations. Research of the last couple of decades has profoundly rebutted the assumption that international organizations are a-political. They have been discovered, among others, to serve as platforms for the formation of epistemic communities, as agorae for political deliberation and contestation or to use their bureaucratic potential and the flexibility of their mandates to establish a degree of independence from their principals. The book by Tana Johnson, professor of political science at Duke University, adds another important perspective that has not been explored so far. She turns our attention to the fact that institutional design might matter for the international organization’s independence from member states. As chief witness for her thesis, she summons the Intergovernmental Panel on Climate Change (IPCC). Originally a brainchild of the US government, it is today a fairly independent institution fallen from grace with its master. Johnson argues that it owes its independence to the influence of international bureaucracies – that is, staff of other international organizations, upon the process that led to its establishment. The thesis puts the spotlight on the fact that a majority of new international organizations that saw the light of the day during the last decades was fostered by pre-existing international organizations.
- Topic:
- International Relations, Climate Change, International Law, International Organization, and Governance
- Political Geography:
- United States and Europe
1843. James C. Hathaway, Michelle Foster. The Law of Refugee Status
- Author:
- Rosemary Byrne
- Publication Date:
- 04-2015
- Content Type:
- Journal Article
- Abstract:
- The claims made by migrants seeking protection under the 1951 Convention Relating to the Status of Refugees (Refugee Convention) have created a staggering body of state practice emerging from the interpretation by national courts of what is the earliest universal human rights treaty. The first edition of James Hathaway’s The Law of Refugee Status, alongside Guy Goodwin-Gill and Jane McAdam’s The Refugee in International Law, is one of the essential texts on every refugee lawyer’s bookshelf. Now in its second edition, co-authored by Hathaway and Michelle Foster, The Law of Refugee Status is likely to maintain its standing.
- Topic:
- International Law, Treaties and Agreements, United Nations, Refugees, and Courts
- Political Geography:
- Europe, United Nations, and Mediterranean
1844. Arnaud de Nanteuil. Droit International de l'investissement
- Author:
- Eric De Brabandere
- Publication Date:
- 04-2015
- Content Type:
- Journal Article
- Abstract:
- There clearly is no dearth in publications dealing with the burgeoning field of international investment law. And one might wonder whether another handbook is needed on the subject. Yet Arnaud de Nanteuil’s Droit International de l’investissement has certain features that make the book of particular interest. Notably, it constitutes the first francophone handbook exclusively dedicated to international investment law.
- Topic:
- International Law, International Trade and Finance, Treaties and Agreements, and Courts
- Political Geography:
- Europe and France
1845. Stephen Allen. The Chagos Islanders and International Law
- Author:
- Peter H. Sand
- Publication Date:
- 04-2015
- Content Type:
- Journal Article
- Abstract:
- The tale of the Chagos Archipelago (British Indian Ocean Territory, BIOT) raises a wide spectrum of transnational legal questions, all across the fields of human rights, environment and disarmament. Last-born of the Empire’s colonies, the BIOT was established – and systematically depopulated – for the sole purpose of accommodating a strategic US military base during the Cold War years in 1965–1966. The territory has since generated extensive litigation in the national courts of the United Kingdom (UK) and the USA as well as proceedings in the European Court of Human Rights and an arbitration under Annex VII of the Convention on the Law of the Sea (UNCLOS). Stephen Allen, senior lecturer at the University of London’s Queen Mary College, has long followed and commented on legal developments in the Chagos cases as an observer. The focus of his attention remains the plight of the native Chagossians, a small Kreol-speaking people of African and Malgasy origin, whose exile (mainly to Mauritius, the Seychelles and the UK) has lasted for more than 40 years.
- Topic:
- Environment, Human Rights, Imperialism, International Law, History, Courts, Disarmament, and Displacement
- Political Geography:
- Britain, United States, Europe, and Chagos Islands
1846. Schizophrenie du droit international
- Author:
- Ekaterina Yahyaoui Krivenko
- Publication Date:
- 04-2015
- Content Type:
- Journal Article
- Abstract:
- A poem by Ekaterina Yahyaoui Krivenko.
- Topic:
- Globalization, Human Rights, International Law, and Constitution
- Political Geography:
- Europe and Global Focus
1847. Who Wants What? – Final Offer Arbitration in the World Trade Organization
- Author:
- Jaime Tijmes
- Publication Date:
- 07-2015
- Content Type:
- Journal Article
- Abstract:
- The World Trade Organization’s (WTO) Dispute Settlement Understanding (DSU) favours negotiated settlements for disputes. However, arbitrations according to Article 22.6 of the DSU have been carried out as compulsory conventional arbitrations, even though such arbitrations do not offer strong incentives for the parties to reach a settlement. For quite some time, scholars have studied other forms of arbitration that may encourage settlements more strongly, such as final offer arbitration. Yet this form of arbitration has received rather limited attention in the academic discussion about dispute settlement under the WTO. This article explores to what extent final offer arbitration might make sense for settling WTO disputes and concludes that it would be suitable for arbitrations pursuant to Article 22.6 of the DSU, specifically for setting the level of suspension of obligations and, under certain circumstances, for deciding on so-called cross-retaliation pursuant to Article 22.3 of the DSU. Before negotiations start, parties to a dispute should agree on final offer arbitration if arbitration should be deemed necessary. Such an agreement might be expressed in a pre-emptive joint proposal on procedural aspects. Amendment of the DSU would then be unnecessary.
- Topic:
- International Law, International Trade and Finance, Treaties and Agreements, and World Trade Organization
- Political Geography:
- Europe and Global Focus
1848. Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the ECHR
- Author:
- Lorna McGregor
- Publication Date:
- 07-2015
- Content Type:
- Journal Article
- Abstract:
- The presumption that courts are the principal forum for dispute resolution continues to be eroded. Alternative forms of dispute resolution (ADR), including agreement-based ADR (such as mediation and conciliation) and adjudicative ADR (such as arbitration), continue to proliferate and are increasingly institutionalized, leading to their characterization as ‘appropriate’ or ‘proportionate’ dispute resolution. Interestingly, despite these developments, the position of international human rights law (IHRL) on two key questions regarding ADR and proportionate dispute resolution (PDR) is unclear. These questions are, first, the standards of justice expected of ADR/PDR (whether entered into voluntarily or mandatorily). Second, the permissible circumstances in which parties to a dispute can be required to use ADR/PDR instead of, or before, accessing courts. The attributes and challenges with ADR/PDR have been discussed extensively in socio-legal studies, feminist literature and the dedicated ADR/PDR literature. This article seeks to bring this vast theory on the diversification and institutionalization of dispute resolution into IHRL. Through the lens of the European Court of Human Rights, this article examines the types of tests that supranational bodies currently employ and advances a framework for assessing the choice, design and implementation of ADR/PDR in the future.
- Topic:
- Human Rights, International Law, Legal Theory, and Courts
- Political Geography:
- Europe, France, and European Union
1849. International Investment Law and the European Union: Towards a New Generation of International Investment Agreements
- Author:
- Catharine Titi
- Publication Date:
- 07-2015
- Content Type:
- Journal Article
- Abstract:
- For about half a century, the European investment treaty model has been associated with European Union (EU) member states’ bilateral investment treaty practice, often referred to as their ‘best practices’. Member state bilateral investment treaties, which are liberal instruments strongly protective of investor interests, have remained relatively unchanged over the years, in contrast with their North American counterparts, which have come to represent a new type of investment treaty, cognizant for the first time of the contracting parties’ right to regulate. With the entry into force of the Treaty of Lisbon and the exercise of the EU’s new competence over the conclusion of treaties covering foreign direct investment, Europe marks its distances with the old approach of the member states and appears eager to set its own ‘model’. While broadly in harmony with the new generation of North American investment treaties, the nascent EU policy aims to improve international investment law in innovative ways, targeting both substantive and procedural protections, and leading to a yet newer generation of international investment treaties. The present article explores this new EU standard, which is set to change the face of international investment law as we know it.
- Topic:
- International Law, Treaties and Agreements, Foreign Direct Investment, and European Union
- Political Geography:
- Europe and European Union
1850. International Investment Law and the European Union: A Reply to Catharine Titi
- Author:
- Martins Paparinskis
- Publication Date:
- 07-2015
- Content Type:
- Journal Article
- Abstract:
- Reasonable people might disagree whether the European Union (EU) is likely to make a significant and commendable contribution to international investment law. This article addresses two issues of relevance for this discussion. First, it considers the appropriateness of evaluating evelopments in international investment law in terms of balance between investor protection and the right to regulate. Second, the contribution of the recent EU practice is briefly examined, finding it less interesting and innovative than one might have expected.
- Topic:
- International Law, European Union, Regulation, and Finance
- Political Geography:
- Europe and European Union