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571. Justice in International Economic Law? From the 'International Law among States' to 'International Integration law' and 'Constitutional Law'

Author:
Ernst-Ulrich Petersmann
Publication Date:
12-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
The UN Charter and the Vienna Convention on the Law of Treaties require interpreting treaties and settling international disputes “in conformity with the principles of justice and international law.” This contribution discusses procedural and substantive principles of justice which the international judge may take into account in interpreting international economic agreements. The “sovereign equality of states” underlying the “international law of coexistence” as well as the “international law of intergovernmental cooperation” must be interpreted in conformity with the universal recognition of human dignity as a source of inalienable human rights. The universal recognition of economic and social human rights further requires taking into account solidarity principles, as proposed also by the sociological approach to international law. The constitutional structures and citizen-oriented functions of the law of international economic organizations liberalizing and regulating mutually beneficial market transactions among citizens require judges to engage in a careful balancing of state-centered and citizen-oriented principles of international law, including respect for the emerging human right to democratic decision-making. This modern “international integration law” and the increasing number of “international constitutional rules” promote the reconciliation of the various state-centered approaches, human rights approaches, sociological approaches and policy-approaches to international law as a system not only of international rules and “legal pluralism” but also of constitutionally limited decision-making processes and struggles for human rights.
Topic:
Economics, Human Rights, International Law, Treaties and Agreements, and United Nations
Political Geography:
Vienna

572. Making Sure Fish Piracy Doesn't Pay

Publication Date:
01-2006
Content Type:
Policy Brief
Institution:
The Organisation for Economic Co-operation and Development
Abstract:
Fish piracy, or illegal fishing activity, depletes global fish stocks and undermines efforts to ensure continued, renewable stocks for the future. It also damages the economic and social welfare of those involved in legal fishing, and reduces incentives to play by the rules. But despite national and international efforts, illegal, unreported and unregulated (IUU) fishing continues to thrive worldwide.
Topic:
Economics, Environment, Human Welfare, and International Law

573. UNCLOS and its Limitations as the Foundation for a Regional Maritime Security Regime

Author:
Sam Bateman
Publication Date:
04-2006
Content Type:
Working Paper
Institution:
Centre for Non-Traditional Security Studies, S. Rajaratnam School of International Studies
Abstract:
The 1982 UN Convention on the Law of the Sea (UNCLOS) provides the foundation for an effective regional maritime security regime. However, this large and complex Convention is not without its limitations. There are many examples of apparent noncompliance with its norms and principles, and the United States, as a key player in regional maritime security, is still not a party to it. The root causes of these problems lie in basic conflicts of interest between countries on law of the sea issues, the "built-in" ambiguity of UNCLOS in several of its key regimes, and the geographical complexity of the East Asian region in particular.
Topic:
International Relations, International Law, and United Nations
Political Geography:
United States

574. The Rule of Law, Legal Traditions, and Economic Growth in East Asia

Author:
Meredith Woo-Cumings
Publication Date:
05-2006
Content Type:
Working Paper
Institution:
United Nations University
Abstract:
This paper examines the literature on the rule of law and economic development, and in particular the influential argument by La Porta et al., on the superiority of the Anglo-American common law system in fostering financial development. In this paper I show that however compelling their argument might be, legal traditions and institutions do not determine the nature of the state, nor its likely role in the economy—nor do they critically determine the course of economic development. I build my case by examining the real and informal mechanisms of state intervention in the economy in East Asia.
Topic:
Development, Economics, and International Law
Political Geography:
America, Israel, and East Asia

575. International Criminal Accountability and Children's Rights

Author:
Vesselin Popovski and Karen Arts
Publication Date:
07-2006
Content Type:
Policy Brief
Institution:
United Nations University
Abstract:
It is common knowledge that children suffer from armed conflicts—both directly, as victims of atrocities, and indirectly, as their childhood, education, family life and expectations are ruined. According to UNICEF, during the last decade more than two million children died as a direct result of armed conflicts, and more than three times that number of children were permanently disabled or seriously injured. An estimated 20 million children have been forced to flee their homes and more than one million have been orphaned or separated from their families. Some 300,000 child soldiers, boys and girls under the age of 18, are involved in more than 30 conflicts worldwide.
Topic:
Crime, Human Rights, and International Law
Political Geography:
United Nations

576. Temporary Courts, Permanent Records

Author:
Trudy Huskamp Peterson
Publication Date:
08-2006
Content Type:
Working Paper
Institution:
United States Institute of Peace
Abstract:
Temporary international criminal courts create voluminous records of tremendous and lasting significance to victims, scholars, and legal practitioners, and arrangements must be made for their permanent protection, storage, and use. A conceptual framework is offered for creating a central international judicial archives under UN auspices and for standards to select, preserve, and manage the records of temporary international criminal courts. The closure of these courts makes a decision on the disposition of their records urgent: the Timor Leste Special Panels and Serious Crimes Unit closed in May 2005; the status talks on Kosovo are currently under way; the Sierra Leone court is to close in mid-2007; and the ICTY and ICTR are to complete all proceedings by 2010. A survey of the five courts reveals substantial differences among them because of the varied roles played by the United Nations in their establishment and operations. These differences in turn lead to differences in the potential disposition of the records. When the ICTY and ICTR close, their records will become the responsibility of the United Nations Archives and Records Management Section. The legal responsibility for the Sierra Leone court records is to be negotiated between the United Nations and the government of Sierra Leone. The management of the copies of the East Timor records held by the United Nations is controlled by an agreement between that government and the United Nations. The records of the UN mission in Kosovo relating to the Kosovo internationalized courts will be divided among the government and the three organizations currently comprising the UN mission. Records of the tribunals are key research resources for victims, civic activists, academics, journalists, educators, and successors to current court officials. Potential users of the tribunal records urge officials to place the records where research will be fostered. Preservation requires active intervention to ensure that records can be used; if records are simply stored they will deteriorate, and electronic and audiovisual records will deteriorate irretrievably The ICTY, ICTR, and the Special Court for Sierra Leone must establish basic access rules for their records before closing; they should make every attempt to harmonize their access provisions. The United Nations should explore constructing and staffing an international judicial archives in The Hague and should begin providing copies of publicly available court records to institutions in the countries affected by the court proceedings. Governments and donors should actively encourage and support the United Nations in these efforts.
Topic:
Crime, Government, International Law, and United Nations
Political Geography:
Kosovo and Sierra Leone

577. Competing Definitions of the Rule of Law: Implications for Practitioners

Author:
Rachel Kleinfeld Belton
Publication Date:
01-2005
Content Type:
Working Paper
Institution:
Carnegie Endowment for International Peace
Abstract:
Definitions of the rule of law fall into two categories: (1) those that emphasize the ends that the rule of law is intended to serve within society (such as upholding law and order, or providing predictable and efficient judgments), and (2) those that highlight the institutional attributes believed necessary to actuate the rule of law (such as comprehensive laws, well-functioning courts, and trained law enforcement agencies). For practical and historical reasons, legal scholars and philosophers have favored the first type of definition. Practitioners of rule-of-law development programs tend to use the second type of definition. This paper analyzes the challenge of effectively defining the rule of law, through an examination of both types of definitions, the historical background of each, and the implications of each for rule-of-law development efforts.
Topic:
Development, Government, International Law, and Politics

578. CATO Institute: Don't Resurrect the Law of the Sea Treaty

Author:
Doug Bandow
Publication Date:
10-2005
Content Type:
Working Paper
Institution:
The Cato Institute
Abstract:
For more than 20 years, the United States has refused to become a party to the Law of the Sea Treaty. Advocates of the treaty, a comprehensive measure governing navigational rights on the sea and mineral rights on the seabed, claimed that U.S. failure to join the convention would result in chaos on the high seas. It has not. Very few Americans know anything about the treaty, and even advocates are hard-pressed to explain how the United States would benefit from its adoption.
Topic:
Foreign Policy, International Law, and Treaties and Agreements
Political Geography:
United States

579. Recoupement des droits de l\'Homme et du droit international humanitaire dans les situations de crises et de conflits

Author:
Jonathan Benthall
Publication Date:
12-2005
Content Type:
Journal Article
Journal:
Cultures & Conflits
Institution:
Cultures & Conflits
Abstract:
Les mécanismes de la mise en oeuvre du droit international humanitaire sont beaucoup moins développés que ceux du droit de l\'Homme. Néanmoins, il existe un certain chevauchement entre ces deux corps du droit. L\'article décrit ce chevauchement et analyse les conséquences du point de vue légal concernant leur mise en oeuvre. L\'application cumulative des droits de l\'Homme et du droit international humanitaire pose inévitablement la question de la relation qu\'ils entretiennent. La Cour internationale de justice a répondu à cette question en reconnaissant la primauté du droit international humanitaire vis-à-vis des droits de l\'Homme dans les conflits armés, caractérisant ainsi le premier comme lex specialis. L\'examination de décisions d\'institutions des droits de l\'Homme, comme la Commission et la Cour inter-américaine des droits de l\'Homme et de la Cour européenne des droits de l\'Homme montre une tendance à privilégier le droit international humanitaire. Bien que la pratique de ces institutions des droits de l\'Homme soit limitée, elle ouvre des possibilités supplémentaires aux moyens internationaux limités pour faire respecter le droit international humanitaire par les parties aux conflits armés. Ceci démontre la convergence pratique et utile entre les droits de l\'Homme et le droit international humanitaire.
Topic:
Human Rights, International Law, and International Organization

580. Two Variations on a Theme: Different Logics of Implementation Management in the EU and the ILO

Author:
Miriam Hartlapp
Publication Date:
06-2005
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
From the perspective of the concept of legalization, the European Union (EU) and the International Labour Organization (ILO) both have a high degree of implementation powers delegated to them by the Member States. Beyond this categorization there are substantial differences in how they use the powers delegated to them. To capture these differences this article analyses the different EU and ILO implementation policies along the lines of three logics of implementation (enforcement, management and persuasion). It provides new empirical data on the instruments and mechanisms used to change Member State behaviour. The relative importance of the three logics within the organization, as well as the absolute strength determined by formal and actual power, are assessed. I argue that within the EU implementation-policy enforcement is most developed, whereas the logic most widely employed in the ILO is management. The analysis shows that it is beneficial to go beyond the broad categorizations of 'high delegation' within the legalization concept in order to move towards an understanding of the success or failure of different implementation policies.
Topic:
International Relations, International Law, and Politics