bluuebunny/crossref_metadata_2025 huggingface dataset:
Business Enterprises in Public International Law: the Case for an International Code on Corporate Responsibility
Authors: Heinemann Andreas
Published: May 2011

This chapter focuses on the attention which transnational corporations have attracted in public international law over recent decades. The starting point is the world of the Codes of Conduct in the 1970s and 1980s, followed by the experience with the United Nations (UN) Global Compact in the broader context of Corporate Social Responsibility, and the work of the Special Representative of the Secretary-General on Business and Human Rights, before a proposal for an International Code on Corporate Responsibility is submitted.
Bilateralism and Community in Treaty Law and Practice—of Warriors, Workers, and (Hook-)Worms
Authors: Keith Kenneth
Published: May 2011

This chapter examines bilateralism and community by reference to treaty law and practice in three areas — armed conflict, labour, and epidemics. While the legal regimes in each area have a treaty base, it is argued that they may not be usefully considered in purely contractual or transactional, bilateral, and private interest terms which emphasize the reciprocal interests of the State parties. Nor is a delict — property — contract analysis adequate for understanding those areas. Ideas of public good and public interest, legislation, administration, adjudication, and constitutionalization are also required. The chapter undertakes the examination by reference to one of the major international law reform undertakings of the last century — the Vienna Convention on the Law of Treaties (VCLT), a text of fundamental authority which extends far beyond its formal reach.
The International Law Commission Facing the Second Decade of the Twenty-first Century
Authors: Nolte Georg
Published: May 2011

This chapter argues that even if the historical preconditions for the success of the ILC in the 20th century have not disappeared but only changed somewhat, the question arises whether this is a sufficient basis for being confident that the ILC can make a difference in the future. Of course, the answer to this question depends on how we anticipate the world will look like and develop in the foreseeable future, and what the world will then require. The history of the ILC seems to demonstrate that its success, or lack of success, depends not only on the intrinsic quality of its work, but also on the more or less favourable political context of the times. And, so far, this context seems to have changed about every decade.
International Law Needs Development. But Where to?
Authors: Zemanek Karl
Published: May 2011

In his academic work Bruno Simma concerned himself foremost with fundamental issues of international law. Hence, a tribute to him should address such an issue rather than engage in the meticulous examination of a specific and therefore limited legal problem. This chapter discusses the question in which direction the development of international law should go.
The Right of Access to Justice to Challenge the Security Council's Targeted Sanctions: After-thoughts on Kadi
Authors: Francioni Francesco
Published: May 2011

The adoption by the Security Council of counter-terrorism measures targeting specific individuals and entities is a fairly recent phenomenon. The original Charter scheme contemplated the adoption of sanctions ‘not involving the use of armed force’ only in relation to Sates. Article 41, even more restrictively, provided that only States that are ‘Members of the United Nations’ may be called upon ‘to apply such measures’. The practice of ‘targeted sanctions’ has changed this paradigm. Even if the addressees of the measures formally remain the States, de facto the Security Council bypasses the States and aims directly at individuals and entities suspected of involvement in, or association with, terrorist activities or organizations. This results in the inclusion of suspected names in the Security Council terror ‘lists’, with consequent freezing of the assets of targeted persons and possible limitations on their freedom of movement for an indefinite period of time. It is not surprising, therefore, that this practice has been met by academic concern about the human rights implications and, more important, by legal challenges in courts of the implementing measures adopted at national and European levels. The high water mark of this challenge is represented by the string of cases brought before the European Community (now European Union) courts and ultimately adjudicated by the European Court of Justice in the now famous Kadi decision of 3 September 2008. The judgment of the Court has stimulated passionate reactions and conflicting views about the relationship between the United Nations (UN) system and the Community legal order. This chapter focuses on the specific legal issue of whether individuals and entities which have been blacklisted by the Security Council for their alleged association with terrorist activities or organizations may be totally deprived of their right of access to justice to challenge counter-terrorism measures that may have been adopted on erroneous or faulty grounds. Before it addresses this question, it points out several paradoxes that surround the Kadi saga.
Global Judicial Activism, Fragmentation, and the Limits of Constitutionalism in International Law
Authors: Howse Robert , Teitel Ruti
Published: May 2011

This chapter explores the contours of a judicial philosophy that depends entirely on a municipal law concept to establish something as fundamental as State responsibility for an internationally wrongful act. It considers three separate opinions: pil platforms, armed activities in the Congo, and the Kosovo Declaration of Independence. The analysis suggests that the core of what we call Simma's judicial activism is in fact substantive and functional, and hermeneutically oriented, not constitutionalist and institutional. Once we consider what may be the deepest sources or foundations of Simma's judicial activism in a post-Westphalian, human-rights based vision of international order, the ICJ, as a State-driven court, may be in some ways unsuited as an institution to Simma's activism. In this sense, perhaps these separate opinions are as much ultimately an appeal for the evolution of international judicial machinery as an expression of disagreement with colleagues on the Bench.
Balancing Individual and Community Interests: Reflections on the International Criminal Court
Authors: Kaul Hans-Peter , Chaitidou Eleni
Published: May 2011

Essentially, the balancing exercise before the International Criminal Court (ICC) involves two main interests: on the one side, there is the collective interest of States to try persons for ‘the most serious crimes of concern to the international community as a whole’ and to ‘put an end to impunity’. On the international plane, this ‘communalized’ interest of States has been entrusted to the ICC by dint of a multilateral treaty with a view to enforce those interests, in principle, independently and regardless of the will of States. Other actors may join the Court in fulfilling its task. On the other side, there are particular interests advanced by various individuals or entities, including the interests of States rooted in a ‘bilateralist’ understanding of international relations, which either stand in opposition to the multilateralist commitment or which may conflict with each other. This chapter seeks to provide some reflections on how community and various individual interests have been incorporated in the Rome Statute, which actors it involves; and illustrated with three selected topics, how those interests have been balanced in the Court's early jurisprudence. The chapter concludes with a tentative résumé of ongoing challenges and future perspectives of the Court.
‘A New Legal Order of International Law’: On the Relationship between Public International Law and European Union Law after Kadi
Authors: G Krenzler Horst , Landwehr Oliver
Published: May 2011

This chapter seeks to clarify the relationship between international law and the EU legal order — a question that is often reduced to whether World Trade Organization law has or should have direct effect within the EU legal order. Accordingly, there is a wealth of academic literature on that topic which often, however, neglects to put the question into the wider context of how general international law interacts with EU law. This question was brought to the forefront again in the so-called ‘terrorist cases’. There, the relationship between United Nations (UN) law and EU law was examined in great detail since it was the pivotal point of the judgments. It is argued Kadi does not represent the ultimate step by which EU law emancipates itself from public international law (PIL) in order to become a fully self-contained regime. Kadi is not völkerrechtsunfreundlich. In that respect, it is worth bearing in mind that, unlike the US Supreme Court in Medellin, the ECJ has not denied the conferral of rights granted by PIL but remedied the latter's deficiencies. Therefore, in the long run, the Court's judgment in Kadi might even strengthen international law in the way the Solange I judgment of the German Constitutional Court led to the evolution of human rights law in the ECJ's own jurisprudence.
The International Court of Justice and the Environment: The Recent Paper Mills Case
Authors: R Moncayo Guillermo , von Hase Martin Moncayo
Published: May 2011

A bilateral treaty signed between Argentina and Uruguay, on 7 April 1961, defined the boundary between the two countries in the River Uruguay (the Treaty). The Treaty allocated certain islands and islets to each country, set forth navigation rules, and considered the establishment of a set of rules for the use of the river which came into existence by virtue of the Statute of the River Uruguay, signed in 1975 (the Statute). The Statute also establishes the Administrative Commission of the River Uruguay (CARU) which consists of an equal number of delegates for each party and which has the status of a legal entity with broad powers to set forth mandatory regulatory provisions in connection with — among other issues — pollution prevention and the preservation of living resources. The Statute also provides, in connection with the performance of works and the use of water, that the party which plans to carry out activities that, due to their magnitude, may affect the navigation, the regime of the river, or the quality of its water, shall inform CARU about them. This chapter discusses the case submitted by Argentina to the International Court of Justice (ICJ), arising out of the alleged violation by Uruguay of the provisions of the Treaty and the Statute, derived from the projected construction of two pulp mills on the Uruguayan river bank, which led to a dispute between the two countries which, after a series of frustrated negotiations, was submitted to and adjudicated by the ICJ. The Court reached a decision on the case, issuing an award on 20 April 2010 (the Award).
The Natural Superiority of Courts
Authors: 'Connell Mary Ellen
Published: May 2011

This chapter argues that the International Court of Justice (ICJ) as the court with the broadest jurisdiction and greatest expertise in international law should be the court of last resort for international law questions, especially with respect to such significant international legal doctrines as jus cogens. In light of significant errors by national courts in the interpretation and application of international law, the need for an expert body to correct errors and create unity seems evident. The ICJ certainly includes many of the most able international law specialists of our time, including Judge Bruno Simma.
Judicial Redress of War-related Claims by Individuals: the Example of the Italian Courts
Authors: Oellers-Frahm Karin
Published: May 2011

Over the past few decades, in particular since the Second World War, human rights have gained increasing significance in international law. Traditionally, the individual, his or her rights, and the implementation of these rights on the international plane were completely dependent upon State action; the individual was barred from taking action him or herself, this was ‘mediaticized’ by the State. With the Charter of the United Nations (UN) and the adoption of numerous human rights instruments, some of them providing for judicial redress, and in particular with the realization of international criminal jurisdiction, the position of the individual in international law has improved dramatically. A provisional apex of this development has been reached with the claims brought by individuals before national, in particular Italian, courts against Germany concerning redress for violations of human rights during the Second World War. This chapter considers whether the judgments admitting the claims despite serious concern arising from traditional international law do maintain a balance between individual and community interests, or whether they over-emphasize individual rights, breaking with well-established and reasonable principles of international law.
From Individual to Community Interest in International Investment Law
Authors: Schreuer Christoph , Kriebaum Ursula
Published: May 2011

The protections granted to investors by international investment law would seem to epitomize individual interests. In fact, some of the criticism directed at investment law and especially investment arbitration is based on the charge that they serve the egoistical interests of big corporations often at the cost of a wider community. This chapter demonstrates that investment law is by no means exclusively governed by individual interests but is also receptive to community interest.
Diplomatic and Consular Protection: the Rights of the State and the Rights of the Individual in the LaGrand and Avena Cases
Authors: Sepúlveda-Amor Bernardo
Published: May 2011

Questions surrounding the rights of States and individuals under the Vienna Convention on Consular Relations (VCCR) have received significant attention from the International Court of Justice (ICJ) over the past two decades. In three cases before the Court, Paraguay, Germany, and Mexico have submitted claims in which they have sought to protect the individual rights of their citizens by applying the international legal principles of diplomatic protection and consular assistance enshrined in the VCCR. Within each of these cases, the Court has adjudged the respect for the rights of States and their nationals when finding that a breach of due process of law has occurred. Through the LaGrand case and the Avena case, respectively, Germany and Mexico have each played critical roles in preserving individual rights guaranteed by the VCCR.
Does the European Court of Justice keep the Balance between Individual and Community Interest in Kadi?
Authors: Streinz Rudolf
Published: May 2011

This chapter focuses on whether the ECJ has kept the balance between the individual's interest in human rights protection and the community interest to fight against international terrorism, bearing in mind that at the end of the day either interest is of concern to both the individual and the community. It argues that the ECJ in Kadi struck a proper balance between the nature of the security risk and the extent to which an encroachment on human rights can be justified, and outlined the procedure which must be observed when doing so. It struck the balance between security concerns as public interests and human rights as individual interests. The case demonstrates, however, the problem of combining the legal requirements of different levels.
Sailing the Wine-Dark Sea—An Unfinished Journey: Some very Preliminary Thoughts on Pirates and Other Pernicious People
Authors: Khan Daniel-Erasmus
Published: May 2011

The phenomenon of maritime piracy has terrorized the seas since time immemorial. The number of attacks worldwide having increased more than tenfold in the past two decades, the pirate menace has always constituted a challenge not only for seafaring nations, indiscriminately exposed to the peril of being set upon by these ‘pernicious people’. Rather, as long as the oceans have been plied for commerce, it has affected all those who benefit from seafaring — so, virtually the international community as a whole. Hence, from this perspective good reasons may indeed exist for pirates to be labelled ‘Hostis Humani Generis’ (enemies of mankind), a concept credited to the Roman lawyer, statesman, and political theorist Marcus Tullius Cicero.
A History of the Doctrine of Odious Debts: Serving Individual/Bilateral or Community Interests?
Authors: Reinisch August
Published: May 2011

Traditionally, the ‘odiousness’ of certain debts was determined by the particular harm to the debtor, for example, debts incurred to fight secessionist movements that eventually prevailed and established a successor State. It was thus largely determined by the bilateral relationship between predecessor and successor State. Today, the basis and content of the odious debts doctrine may have changed by including community interests in the notion of odious debts. This chapter investigates whether and, if so, to what extent community interests may have become more prominent in the odious debts discourse.
Privatization of Military Flights in the Mesh of International and National Law
Authors: am Busch Birgit Schmidt
Published: May 2011

The privatization of militarily motivated activities raises new questions under international and national law with respect to the conduct of third States. Because of the increasing practice of privatization of military functions, third States can easily become involved in the illegal conduct of other States. The application of the prohibition of inter-State complicity in illegal armed conflicts, which can be derived from various sources of international law, does not depend on the pattern of organization the aggressor State chooses for its preparatory actions. The key factor is whether authorities of the third State significantly contribute to the carrying out of the armed attack in awareness of the circumstances. In order to avoid Germany being responsible for a violation of the prohibition of inter-State complicity, Articles 25 and 26 Basic Law are to be interpreted as guaranteeing that each authority involved decides for itself whether support given to private contractors deployed by an aggressor State constitutes illegal complicit conduct. This is the most effective way to ensure that Germany does not participate in any illegal war activities of other States in times where privatization of essential sovereign functions has become a reality in international relations.
The Impact of Climate Change: Challenges for International Law
Authors: Schrijver Nico
Published: May 2011

The impacts of climate change challenge traditional notions in international law, most notably those relating to the principle of territorial sovereignty, with its presumption of defined territory and fixed maritime boundaries, and State responsibility with its presumption of liability and an obligation to make reparation. Furthermore, efforts to curb climate change have given rise — sometimes in conjunction with developments in other environmental regimes — to the evolution of some new principles and concepts of international law, including the principle of common but differentiated responsibilities, the notion of common concern of humankind, protection of vulnerable countries, and so-called flexibility mechanisms for industrial countries to implement their commitments under the Climate Change Convention. This chapter addresses a number of those challenges to international law. First, it reviews the principal international legal instruments adopted in response to climate change. Secondly, it examines the challenges of climate change to territorial sovereignty and Statehood, and, thirdly, to the maritime boundaries of coastal and island States. Fourthly, the relationship between climate change and human rights is reviewed. Fifthly, the chapter discusses whether the current rules of the international law of State responsibility represent the proper paradigm to address the problem of damage caused by climate change. Lastly, some final observations are made.
Abraham, Jesus, and the Western Culture of Justice
Authors: HH Weiler Joseph
Published: May 2011

This chapter examines the two most critical Biblical narratives which pertain to the theme of justice, narratives which have shaped Western sensibilities on this issue. These are narratives of Abraham and Jesus and his trial.
European Company and Financial Law: Observations on European Politics, Protectionism, and the Financial Crisis
Authors: Hopt Klaus J
Published: May 2011

This chapter presents the overall picture of the state of the art of European company law after the 2007/08 financial crisis. Citing a number of examples, it warns that the crisis has brought a temptation for many Member States to lock up their markets. The most obvious example is the regulation of third-country Sovereign Wealth Funds; but also that states may link bail out payments and subsidies to policies of the failing companies to save jobs at home and give preference to national contract partners.
Is ‘Protectionism’ a Useful Concept for Company Law and Foreign Investment Policy? An EU Perspective
Authors: Waymouth Crispin
Published: May 2011

This chapter examines the term ‘protectionism’ and whether it is possible to apply it meaningfully to company law and foreign investment policy. After looking at the various definitions of ‘protectionism’, it argues that whilst the word is perhaps useful as a general term for describing an economic ‘bad’ that should be avoided, it is nearly useless at describing specific actions, particularly in the regulatory field, and its employment today often risks doing more harm than good. The chapter sets out four alternative criteria—the general public interest, non-discrimination, proportionality, and predictability—and tests EU and Member State behaviour in company law and foreign investment policy against these. It concludes that there is a mixed picture and that more needs to be done to promote open investment, including through international co-operation.
The Takeover Directive as a Protectionist Tool?
Authors: Davies Paul , Schuster Edmund-Philipp , de Ghelcke Emilie van de Walle
Published: May 2011

The principal purpose behind the Takeover Directive in the eyes of the European Commission was to promote the integration of the national economies constituting the ‘single market’ and to enhance the competitiveness of European industry as against non-European rivals by facilitating takeover bids, especially cross-border ones. This chapter examines whether and, if so, to what extent the implementation of the Takeover Directive in the Member States has moved national laws towards the position in which takeovers are available to a significant extent as a technique for ‘the development and reorganization of European firms’. The chapter is organized as follows. Section II identifies the function of the board neutrality rule (BNR) in facilitating takeover bids. Section III analyses the choices created by the Directive in relation to the BNR by the Directive. It is shown that these choices exist both at the level of the Member State and at the level of the individual company. Sections IV and V report the evidence about the choices which have been made at both these levels, while Section VI concludes.
Cross-Border Restructuring—Company Law between Treaty Freedom and State Protectionism
Authors: Hansen Jesper Lau
Published: May 2011

Company law governs two important methods of restructuring—mergers and takeovers—that may be applied within the European Union and are as such protected by the freedom afforded by the Treaty. Both entail a change of control that may conflict with the desire of a Member State to protect certain industries and maintain its influence by special regulation in the form of golden shares and the like. This chapter explores this conflict to establish the balance of interests reached by the Court of Justice of the European Union in recent case law.
Mechanisms of Ownership Control and the Issue of Disproportionate Distribution of Power
Authors: Bernitz Ulf
Published: May 2011

The Takeover Directive is based on the view that takeovers should be encouraged as an instrument for EU company restructuring plans. Takeovers have even been considered to be a ‘condition for the survival’ of European undertakings within the context of international competition and a condition for the establishment of a European financial market. This chapter is organized as follows. Section II gives a description of the Directive and its aims and limits, with particular reference to the so-called breakthrough rule. Section III presents different European mechanisms of ownership control, based on the 2007 Report on the Proportionality Principle. Section IV discusses the system of multiple voting rights as applied in the Nordic countries, using Sweden as example, while Section V concludes.
Sovereign Wealth Funds—Market Investors or ‘Imperialist Capitalists’? The European Response to Direct Investments by Non-EU State-Controlled Entities
Authors: Schweitzer Heike
Published: May 2011

This chapter explores European attitudes towards Sovereign Wealth Funds (SWFs). Following a brief survey of the specific characteristics and relevance of SWFs and the response that the increased economic importance of state-controlled foreign direct investment has received in the US, it outlines the general approach of EU law to the direct involvement of EU Member States in European markets. It then asks how the presence of non-EU states in European markets can and should be addressed under EU law.
Sovereign Wealth Funds: Neither Market Investors Nor ‘Imperialist Capitalists’—A Response to Heike Schweitzer
Authors: Pistor Katharina
Published: May 2011

This chapter comments on the discussion presented in Chapter 12. It argues that Sovereign Wealth Funds (SWFs) are neither market investors nor ‘imperialist capitalists’, but rather they operate under mechanisms that escape a traditional classification under Western typology. They are deeply interwoven with the political system they serve and show patterns both of market and political strategy. It concludes that the West does not have to fear most of the SWFs.
The European Model Company Act (EMCA)—A New Way Forward
Authors: Andersen Paul Krüger
Published: May 2011

This chapter discusses the European Model Company Act (EMCA) project. The EMCA will be designed as a freestanding general company statute that can be enacted substantially in its entirety by the Member States, or they may enact selected provisions of the Model Act. This approach differs from previous European company law initiatives as it is a general settlement of the debate on which one of the two regulatory approaches is superior—regulatory competition or harmonization. The EMCA offers the Member States a harmonized company law, but leaves it to each Member State to decide whether it will offer its businesses the advantages given by harmonization. The major benefit from an integrated company law framework is that it establishes similar conditions for company shareholders and third parties all over the EU, thus facilitating cross-border investment and trading by ensuring shareholder rights and rebuilding investor confidence.
The Role of European Regulation and Model Acts in Company Law
Authors: Payne Jennifer
Published: May 2011

This chapter evaluates the European Model Company Act (EMCA) project. It considers the role that European regulation plays in company law generally; a role that has been dominated by the EU to date. Although EU harmonization has been mandatory, and has largely been confined to publicly listed companies, and therefore is not on all fours with the EMCA project, a consideration of these issues nevertheless raises important considerations for that project. The nature and benefit of the EMCA project are discussed.
How Does the Market React to the Societas Europaea?
Authors: Eidenmüller Horst , Engert Andreas , Hornuf Lars
Published: May 2011

When Council Regulation (EC) No 2157/2001 on the Statute for a European Company (Societas Europaea, SE) became effective on 8 October 2004, it offered existing publicly traded companies, for the first time, a choice between competing company laws, namely the national law of the company's home state and the law of the supranational SE. Using an event study methodology, this chapter analyses a unique dataset of publicly traded firms that have announced to re-incorporate under the SE Regulation. The findings offer insights into how the market accepts the new European legal form.
Empirical Notes on the Societas Europaea
Authors: Kirshner Jodie A
Published: May 2011

This chapter comments on the study presented in Chapter 16, which examined the impact that the decision to reincorporate as a European Company or SE has on the share price of companies, and what benefits the SE offers to corporate investors. It raises additional questions such as: To what extent does the data show an attitude towards the specific issue of co-determination? And can conclusions be drawn on possible benefits for other stakeholders, not only the shareholders that are represented in this study? In any event, the empirical study on the SE is considered pioneering work and a great first step towards the understanding of the value of this legal form and optional legal forms altogether.
7 John Opie
Authors: Junod Karen
Published: May 2011

This chapter discusses Amelia Opie's Memoir of her husband, the painter John Opie. It argues that Opie's Memoir marks a pivotal transition in the biographical writing of artists' lives in Britain. Unlike most other lives of artists published in Britain in the eighteenth century, Opie's Memoir portrayed her subject in a private setting. The domestic environment in which Amelia Opie set her biography marked a sharp contrast with the public and often cosmopolitan spheres in which earlier lives of painters had been inscribed. The private world in which Amelia chose to present her husband was not without its tensions, however. This chapter shows that the dynamic between biographer and subject was complicated by gendered issues, and especially by the biographer's conflicting duty and desire to pay tribute to the life of her spouse, while at the same time implicitly promoting her own work and career as a successful novelist.
Disobeying the Security Council
Authors: Tzanakopoulos Antonios
Published: May 2011

This book examines how the United Nations Security Council, in exercising its power to impose binding non-forcible measures (‘sanctions’) under Article 41 of the UN Charter, may violate international law, i.e., limits on its power imposed by the UN Charter itself and by general international law, including human rights guarantees. Such acts may engage the international responsibility of the United Nations, the organization of which the Security Council is an organ. The book then proceeds to examine how (and by whom) the engagement of this responsibility can be determined, i.e., who it is that can find the Council to have acted unlawfully. Most importantly, the book discusses how (and by whom) the responsibility of the UN for unlawful Security Council sanctions can be implemented, i.e., how (and by whom) the UN can be held to account for Security Council excesses. The central thesis is that States can react to unlawful sanctions imposed by the Security Council in a decentralized manner by disobeying the Security Council's command. In international law, this disobedience can be justified as being a countermeasure to the Security Council's unlawful act. Recent practice of States, whether undertaken by executives or, increasingly, by domestic courts, evidences an augmenting tendency to disobey sanctions that are perceived as unlawful. After discussing other possible qualifications of disobedience under international law, the book concludes that this practice can (and should) be qualified as a countermeasure.
Attribution of Conduct to the United Nations
Authors: Tzanakopoulos Antonios
Published: May 2011

For the international responsibility of the UN to be engaged, conduct susceptible of violating international law must be attributable to the UN rather than some other actor (e.g., a Member State). This chapter discusses the types of conduct in which the Security Council engages and the types of conduct that the Security Council strictly imposes on Member States. It argues that normative conduct of the Security Council, including ultra vires conduct, is automatically attributable to the UN. But it also argues that Member State conduct taken in implementation of Security Council commands is attributable directly to the UN, because it is normatively controlled by the Security Council's decision. This normative control amounts to effective control.
The Element of Breach: Sources of Obligations Incumbent upon the United Nations
Authors: Tzanakopoulos Antonios
Published: May 2011

Conduct that is attributable to the UN must also be in breach of the UN's international obligations in order to engage the organization's international responsibility. This chapter examines the sources and content of international obligations incumbent upon the UN, particularly when the organization is acting through the Security Council. It argues that the UN is bound by its own Charter, the lex specialis in this case, which includes the obligations to determine the existence of a threat to the peace (Article 39) and to take measures that are proportional (i.e., necessary and appropriate) to counter the threat. It is also bound by general international law, the lex generalis. This lex generalis includes both jus cogens, but also elements of the jus dispositivum, including human rights obligations, which is not automatically cast aside by the operation of Article 103 of the UN Charter.
Judicial Determination
Authors: Tzanakopoulos Antonios
Published: May 2011

Even if one may theoretically argue that Security Council action has engaged UN international responsibility, the question remains as to who is competent to determine that the UN has become responsible. This chapter surveys the possibility there exists any court or tribunal, including the ICJ and domestic or supranational courts, that can either make such a judicial determination or that can ‘judicially review’ the acts of the Council. It argues that no court may authoritatively determine UN responsibility in this case with binding force. It further defines the notion of ‘judicial review’ as internal, hierarchical, binding, and systematic control of normative acts, and concludes that there can be no judicial review of Security Council action by any court.
Determination by States
Authors: Tzanakopoulos Antonios
Published: May 2011

This chapter argues that the conclusion reached in Chapter 4, that there is no court that can authoritatively determine UN responsibility for Council action or that can judicially review Council acts, is not surprising in international law. In a decentralized legal system, determination of responsibility takes place extra-judicially, by the subjects of the legal system themselves — in this case by States. States, acting as judices in causae suae, determine that the responsibility of the UN has been engaged themselves, and at their own risk. This determination, which is not precluded by the UN Charter, but only made more difficult by the existence of a presumption of legality of UN acts, may take place either through the action of executive (political) organs of the State, or through domestic courts.
Implementation through Self-Enforcement
Authors: Tzanakopoulos Antonios
Published: May 2011

This chapter examines how the responsibility of the UN for wrongful Security Council sanctions can be implemented. The normal way of implementation of responsibility in a decentralized legal system is through countermeasures, i.e., through self-help. The chapter accepts that disobedience is the ultimum refugium of States when these are faced with what they consider wrongful Council sanctions. But it seeks to qualify legally this disobedience. It discusses whether it constitutes civil disobedience, whether it is allowed under Article 25 UN Charter, which — it is argued — obligates States to comply with valid, intra vires acts of the Council, or whether it constitutes an illegal acts that is justifiable as a countermeasure. It concludes that it is the latter, not less so because acts of the Council are always valid, even if they are illegal, for lack of an instance to determine their invalidity.
Further Considerations
Authors: Garner R. Scott
Published: May 2011

With previous chapters having provided several measures of the degree to which early Greek elegy was traditional and formulaic, Chapter 4 concludes the volume by discussing several ways in which future study of this poetry can be affected by these findings. For instance, there are obvious implications for textual criticism and emendation, as well as for investigations into the evolution of various Greek meters. Also, studies looking into poetic performance and cultural change must take into account the fact that the active employment of formulaic verse‐making techniques in elegy seems to have been abandoned very abruptly in the fifth century. But perhaps most important, studies into the actual interpretation of any given elegiac poem of the archaic period need to reconsider the communication strategies and the traditionally encoded meanings that would have been commonly referenced by poets and audiences thoroughly familiar with such formulaic verse‐making techniques.
A national survey of organizational transfer practices in chronic disease prevention in Canada
Authors: Hanusaik Nancy , O'Loughlin Jennifer L. , Paradis Gilles , Kishchuk Natalie
Published: May 2011

Underuse of best practices in chronic disease prevention (CDP) represents missed opportunities to promote healthy living and prevent chronic disease. Better understanding of how CDP programs, practices and policies (PPPs) are transferred from ‘resource' organizations that develop them to ‘user' organizations that implement them is crucial. The objectives of this work were to develop psychometrically sound measures of transfer practices occurring within resource organizations; describe the use of these transfer practices and identify correlates of the transfer process. Cross-sectional data were collected in structured telephone interviews with the person most knowledgeable about PPP transfer in 77 Canadian organizations that develop PPPs. Independent correlates of transfer were identified using multiple linear regression. The transfer practices most commonly used included: identification of barriers to PPP adoption/implementation, tailoring transfer strategies and designing a transfer plan. Skill at planning/implementing transfer, external sources of funding specifically allocated for transfer, type of resource organization, attitude toward process of collaboration and user-centeredness were all positively associated with the transfer process. These factors represent possible targets for interventions to improve transfer of CDP PPPs.
Introduction
Authors: Burton‐Jones Alan , Spender J.‐C.
Published: May 2011

This handbook aims to show the importance of human capital (HC) for contemporary organizations: how it contributes to theories of the firm, how it affects organizational performance, and its role in the future economy. It identifies HC as the linchpin of social and other forms of capital. The article also shows how applying the notion of HC to organizations requires consideration of how human and other intangible intellectual forms of capital differ from more traditional forms, implying the need for a theory of the firm that accommodates a concept of dynamic, heterogeneous HC. It focuses on five aspects of HC: its conceptual underpinnings; its relevance to theories of the firm; its implications for organizational effectiveness; its interdependencies with other resources; and its role in the future economy.
A Social Perspective
Authors: Nahapiet Janine
Published: May 2011

This article begins by suggesting that one must define human capital (HC) from a social perspective, the value of which inevitably depends on a wide range of social factors and relationships. The focus here is on the relationship between human (individual) capital and social capital, and their impact on each other's development. The article examines the concept of capital, drawing initially on the economics literature. It concludes that even though HC fails to meet the criteria for capital evident in that literature, its heuristic value has made it popular nonetheless. It also notes that HC's failure to meet the conceptual conditions of capital theory can be interpreted as a critical insertion of human values into the discussion. Leveraging from the Austrian economists, the article urges the analysis from static concepts and to a more dynamic interactive frame.
Global Culture Capital and Cosmopolitan Human Capital
Authors: Ng Kok‐Yee , Tan Mei , Ang Soon
Published: May 2011

This article concentrates on the firm as the context of human capital (HC) development and application, though its focus is on global firms. Its analysis reaches back into the urban sociology of Gouldner and Merton and adopts their classic distinction between ‘locals’ and ‘cosmopolitans’, the latter having several languages and travel experience to add to their HC. The article argues that cosmopolitan HC is essential for firms competing in the globalized economy. Its intent is to understand how such HC is developed. In a neat move, the article appropriates much of the HC literature's thinking about the impact of parent attitudes, learning habits, and education on their children's educational development. It repositions the corporation as a form of intellectual parent, defined as the custodian or context of the relevant ‘global cultural capital’.
The Firm, Human Capital, and Knowledge Creation
Authors: Krogh Georg von , Wallin Martin W.
Published: May 2011

This article looks at human capital (HC) in the context of the knowledge-based view of the firm. While personal notions of knowledge as HC are axiomatic, they also recognize collective or community processes. But their interplay is a problem, and the article argues that there has been little attention to the microfoundational aspects of aligning the interests of the various individuals involved. It proposes a relationship between the individual and the firm that takes divergent interests into account. The article reviews the history of HC theory and considers the relation between the individual knowledge-based HC and that of the firm. It concludes that three important results emerge from a democratic and cooperative approach to management: firm-level knowledge results only when individuals contribute beyond the terms specifiable in their employment contract, non-pecuniary rewards are essential, and the motivational aspects become those that define the firm.
Maximizing Value from Human Capital
Authors: Coff Russell
Published: May 2011

This article describes two dilemmas for organizations seeking to derive a competitive advantage from human capital (HC). First, the very qualities such as knowledge tacitness and causal ambiguity that make employees' HC valuable, inimitable, and a source of competitive advantage to firms, make it difficult for firms to acquire, organize, retain, and motivate those employees. Second, employees will inevitably seek to maximize their share of the rents accruing from organizational use of their capital through wages, expenses, and benefits, thus only a portion of the rents may flow to shareholders. Strategies to reduce dependency on employees' idiosyncratic HC through knowledge codification and routinization risk increasing imitability. Firms must therefore address these HC dilemmas directly. The article proceeds to analyse issues associated with gaining a competitive advantage from HC. It proposes several ‘coping’ strategies to address turnover and information dilemmas
Accounting for Human Capital and Organizational Effectiveness
Authors: Kramar Robin , Murthy Vijaya , Guthrie James
Published: May 2011

This article discusses how the shift to a knowledge-based economy has propelled firms' human capital (HC) and associated intellectual resources to center stage. It notes that while organizational researchers have highlighted the increasingly strategic role of HC, and despite a growing realization among firms that their human-knowledge resources are becoming more important, managerial awareness of the value of HC remains low. The article suggests that HC management, measurement, and reporting are increasingly vital capabilities that all organizations will need to acquire. It proceeds to analyse the nature of HC, trace the evolution of HC accounting, identify current accounting challenges, and describe contemporary frameworks that are seeking to address these challenges. The article defines HC within organizations as ‘employee capability, knowledge, innovation, adaptability, and experience’, noting that it is typically represented as one element in a tripartite framework of intellectual capital, the other two being relational capital and organizational capital.
Human Capital and the Organization–Accommodation Relationship
Authors: Vischer Jacqueline C.
Published: May 2011

This article focuses on interdependencies between people and their physical work environment – the buildings they occupy and the spaces in which they work. It argues that an organization's physical environment affects its overall performance, through constraining or supporting achievement of its business objectives, the task environment, and intra-organizational relationships. The article suggests that organizations and their members develop organization–accommodation relationships with the land, buildings, workspaces, and information technology which they use that reflect their objectives and cultures. On the subject of relationships between organizations and individuals, the article argues that, along with the various HR elements in work contracts, there is a ‘socio-spatial' element involving promises regarding physical work conditions. It illuminates linkages between the physical and virtual worlds of organizations and suggests how a better understanding of their interdependencies can assist organizations in obtaining more value from their human capital.
Birds bias offspring sex ratio in response to livestock grazing
Authors: Prior Gina L. , Evans Darren M. , Redpath Stephen , Thirgood Simon J. , Monaghan Pat
Published: May 2011

Livestock grazing, which has a large influence on habitat structure, is associated with the widespread decline of various bird species across the world, yet there are few experimental studies that investigate how grazing pressure influences avian reproduction. We manipulated grazing pressure using a replicated field experiment, and found that the offspring sex ratio of a common upland passerine, the meadow pipit
Anthus pratensis
, varied significantly between grazing treatments. The proportion of sons was lowest in the ungrazed and intensively grazed treatments and highest in treatments grazed at low intensity (by sheep, or a mixture of sheep and cattle). This response was not related to maternal body condition. These results demonstrate the sensitivity of avian reproductive biology to variation in local conditions, and support growing evidence that too much grazing, or the complete removal of livestock from upland areas, is detrimental for common breeding birds.