bluuebunny/crossref_metadata_2025_split huggingface dataset:
NGOs at the World Court: Lessons from the past
Authors: Leroux Nicolas 
Published: July 2010

AbstractAn inquiry into the previous history of the Court's involvement with non-governmental organizations shows that neither the PCIJ nor the ICJ were entirely immune to submissions by non-governmental entities before the 1990s. The examination of these submissions and their subsequent treatment by the Court remains extremely fruitful as far as any conceptual framework for the participation of NGOs is concerned. This article first considers the practice of the PCIJ related to non-state organizations (I), before dwelling on the treatment of NGOs by the International Court of Justice from 1947 to 2003 (II) and finally considering the new 'regime' set out by the 2004 Practice Directions (III).
Doing the Right Thing for the Right Reason – Why Dynamic or Static Approaches Should be Taken in the Interpretation of Treaties
Authors: Linderfalk Ulf 
Published: July 2010

AbstractIn the interpretation of treaties, according to Article 31 of the 1969 Vienna Convention, interpreters shall pay primary regard to conventional language and to "relevant rules of international law applicable in the relations between the parties". Applying this provision, it is obvious that interpreters will sometimes face questions of an inter-temporal nature. What law or what language should be brought to bear on the interpretation process, exactly? The one that existed when the interpreted treaty was concluded? Or the one that exists at the time of interpretation? Over the last 30 years, international law doctrine has increasingly come to favour a rather lax approach to this issue. As the prevailing theory contends, different choices should be made depending on the particular treaty interpreted. The present article inquires into the reasons justifying this theory. As argued extensively, although there are certainly good reasons to agree with what the current legal doctrine contends, those good reasons are not the ones commonly invoked: the doctrine of inter-temporal law, as expressed in the Island of Palmas Arbitration, and the two decisions of the International Court of Justice in Namibia and the Aegean Sea Continental Shelf Delimitation, respectively. The supportive reasons lie elsewhere. As argued in the present article, it is imperative that international lawyers come to understand this; particularly if we consider it important that all inter-temporal problems – including those obviously foreseen in the international law literature – are resolved consistently.
Nihil Novum Sub Sole Since the South West Africa Cases? On Ius Standi, the ICJ and Community Interests
Authors: de la Rasilla del Moral Ignacio 
Published: July 2010

AbstractThe Democratic Republic of the Congo v Rwanda Judgement of 3rd February 2006 marked the first occasion in which the International Court of Justice expressly pronounced on the jus cogens character of a norm of international law. The Court did also expressly extend, for the first time, the scope of the principle of consensual jurisdiction to cover the relationship between peremptory norms of general international law and the establishment of the Court's jurisdiction. Against this backdrop, this piece revisits some of the main ICJ milestones regarding community interests in light of recent doctrine on the question of ius standi in disputes involving obligations erga omnes and jus cogens norms. It does so in order to examine the main alternatives put forward by the doctrine to circumvent the requirement of state consent for the protection of community interests by jurisdictional means at the international level.
Rhetoric and Reality: The World Bank Development Policies, Mining Corporations, and Indigenous Communities in Latin America
Authors: Munarriz Gerardo 
Published: July 2010

AbstractRelying on critical legal approaches, in particular TWAIL and the work of Indigenous scholars, this paper analyzes the extent to which the World Bank's notion of "development" and its promotion of the expansion of market-based legal reforms in Latin American countries have benefited transnational corporations (TNCs) to the detriment of Indigenous Peoples. It argues that the World Bank's policy-based lending programmes and market-oriented legal framework since 1980 have contributed to an expansion of corporate mining activities, which have caused not only forced displacement and further impoverishment of numerous Indigenous communities but have also directly contributed to the destruction of their cultures and the environment they inhabit. Furthermore, the World Bank's normative operational policies and practices on issues affecting Indigenous Peoples have provided a legal framework and mechanisms that "manage" affected Indigenous communities in ways that further the dispossession of their lands and natural resources.
The United Nation's Role in Post-Conflict Constitution-Making Processes: TWAIL Insights
Authors: Sripati Vijayashri 
Published: July 2010

AbstractThis essay analyzes how Third World Approaches to International Law (TWAIL) insights have illuminated some but not all themes relevant to understanding post-Cold War internationalised constitution-making processes such as those of Afghanistan and Iraq and the United Nation's (UN) constitutional support therein. It argues that the UN's constitutional support has evolved into an established practice and that the need to interrogate the very idea of the internationalisation of constitution-making, – essentially a domestic process – places the legitimacy of, and the explanations offered for such support into question. It concludes that given its historic opposition to and commitment to end the exploitative relations between the Western powers and the Third World and all contemporary colonial forms in the Third World, TWAIL is the best optic through which the UN's constitutional support in general and its role in the constitution-making process of Afghanistan, in particular, may be examined. For only then can the broader historical and ideological aspects and colonial continuities fundamentally significant to understanding internationalised constitution-making processes and the UN's role therein be uncovered.
From Haiti to Somalia: The Assistance Model and the Paradox of State Reconstruction in International Law
Authors: Saul Matthew 
Published: July 2010

AbstractThis article is an attempt to draw attention to the nature of the assistance model of state reconstruction and its significance for the UN system. Traditional international legal doctrine identifies valid state consent with an effective domestic government. Moreover, effective control remains the means for applying the legal right of self-determination for the population of a state as a whole. Nonetheless, a frequently adopted paradigm for large-scale international involvement in the reconstruction of an ineffective state operates through the consent of an ineffective government. The assistance model is found in the recent past of Haiti (1994–1997; 2004–), Sierra Leone (1998–2005), Liberia (2003–), Afghanistan (2001–), in Iraq following the formal end of the belligerent occupation (2004–), and there are signs that it could soon be pursued in Somalia. To reveal how the assistance model of state reconstruction in fact relates to the political independence of the target state and its people, the key features of the assistance model and related legal issues are addressed. The main argument is that while the assistance model appears unremarkable, in fact it offers little protection for political independence and as a consequence puts at risk the core values of the UN system of self-determination of peoples and international peace.
Delineating the Normativity of Equity in International Law
Authors: Gourgourinis Anastasios 
Published: July 2010

AbstractThe role of equity and equitable principles in international adjudication has long been subject to debate in international legal scholarship, one of the main reasons being the obscurity in properly identifying the normative foundations of equity in international law. This study addresses this issue in specific by providing a three-tier analytical discourse with a view to delineate equity's normativity. In this sense, it is, first, acknowledged that equity has been envisaged as forming part of the wider corpus of positive international law; then, equity is examined vis-à-vis the doctrine of “sources”; finally, the analysis turns to the “routes of entry” of equity in international law, i.e. via treaty, custom, and, most prominently, equitable principles, themselves “general principles of law” of Art. 38(1)(c) of the I.C.J. Statute.
Remarks on Sovereignty in the Evolving Constitutional Features of the International Community
Authors: Tanzi Attila 
Published: July 2010

AbstractThe present article offers a summary overview of the evolutions of the modern international legal setting focusing on its constituent legal pillars. Such pillars, based on the evolving concept of sovereignty and on the basic rules on recognition, are considered in their constituent nature, irrespective of their conformity, or not, with domestic constitutional models and of the recent discourse on constitutionalism. On the one hand, the analysis considers the evolving normative constraints on sovereignty placed by the law-making process carried out by sovereign nation-states in the pursuit of both their individual interests on the basis of reciprocity and of global solidarity through jus cogens rules. On the other hand, the limitations of this normative process are emphasized, so as to indicate the largely aspirational nature of the legal dynamics. The tensions between the equality attribution to sovereignty and recurring hegemonic attempts ‐ from the Napoleonic to the US neo-imperialist ones ‐ and their impact on international law are also looked at in a historical perspective with a view to acquiring the means to decipher the present and perspective dynamics of redistribution of power on the international scene. Finally, the article addresses the ongoing legal discourse on the paradigm of sovereignty expressing scepticism on alternative models as better tools for enhancing good international governance. It is suggested that the existing governmental model should be fully put to fruition through the full awareness of civil society and the enhancement of governmental accountability ‐ in international and domestic affairs, alike ‐ through the legal principle of due diligence.
Inside Out or Outside In? Examining Human Rights in Situations of Armed Conflict
Authors: Guild Elspeth 
Published: July 2010

AbstractWhat duties do states have to individuals who suffer as a result of armed conflict? While the International Court of Justice has stated that the protection offered by human rights conventions does not cease in case of armed conflict, it has not provided any clarity on how this is to be interpreted. This article examines how the European Court of Human Rights has interpreted the duty of a state to guarantee human rights to persons in whose territory the state is engaged in armed conflict.
The International Court of Justice and Nongovernmental Organizations
Authors: Shelton Dinah 
Published: July 2010

AbstractThe role that the non-governmental organizations can play with respect to the proceedings in front of the International Court of Justice has been always a thorny issue. The, relevantly recent, Practice Direction XII has not substantially ameliorated this situation. Although providing an avenue for the views of civil society to be represented, it can also be argued that from an interpretative point of view it is more restrictive than the Statute of the Court itself, a fact which reinforces the debate on the advantages and pitfalls of an amendment of the Statute of the Court. However, other problems remain; the definition of international organization, whether it includes NGOs as well or not, seems to differ not only from tribunal to tribunal e.g. PCIJ and ICJ but also from case to case. Other possibilities of submitting information to the Court, as for instance as experts, have been rarely put to use. The possible benefits of a greater participation of NGOs in the international judicial process have, nevertheless, up till now not changed the most likely of NGO submissions; they either end up being placed to the Peace Palace Library for consultation purposes or they are more seriously considered but only through the intermediary of a State involved in the proceedings.
History of International Law and Western Civilization
Authors: Gozzi Gustavo 
Published: July 2010

AbstractThis paper discusses the origins 19th-century international law through the works of such scholars as Bluntschli, Lorimer, and Westlake, and then traces out its development into the 20th century. Nineteenth-century international law was forged entirely in Europe: it was the expression of a European consciousness and culture, and was geographically located within the community of European peoples, which meant a community of Christian, and hence "civilized," peoples. It was only toward the end of the 19th century that an international law emerged as the expression of a "global society," when the Ottoman Empire, China, and Japan found themselves forced to enter the regional international society revolving around Europe. Still, these nations stood on an unequal footing, forming a system based on colonial relations of domination. This changed in the post–World War II period, when a larger community of nations developed that was not based on European dominance. This led to the extended world society we have today, made up of political systems profoundly different from one another because based on culture-specific concepts. So in order for a system to qualify as universal, it must now draw not only on Western but also on non-Western forms, legacies, and concepts.
Locating Third World Resistance in the International Law on Foreign Investment
Authors: Odumosu Ibironke 
Published: July 2010

AbstractThe international law on foreign investment incorporates several categories of actors within its domain, some traditional, others non-traditional. These actors' engagement with the law is situated within, and at the same time, challenges strategies of interaction that delineate the inside and outside of the international law on foreign investment. The engagements facilitate the development of the law on three norm levels – participation, interaction and regulation. The impact of grassroots movements' activities and frames, even if limited, on the development of these norm levels suggests that the international law on foreign investment and Third World resistance are more mutually constitutive than they seem at first glance.
Caught Between National and Supranational Values: Limitations to Judicial Cooperation in Criminal Matters as Part of the Area of Freedom, Security and Justice within the European Union
Authors: den Hollander Olivia 
Published: July 2010

AbstractCurrently, the European Union is based on both supranational (first pillar) and international (second and third pillar) law. The third pillar signifies police and judicial cooperation in criminal matters and although formally based on international law, it has been under increasing "supranational pressure" by the developments in the "Area of Freedom, Security and Justice". This Area is focused on a set of common values and principles closely tied to those of the single market and its four "freedoms". The main argument of this article is that the legal framework of the third pillar is an impediment to judicial cooperation in criminal matters in general, and to the coordination of conflicts of jurisdiction and the principle of ne bis in idem in particular. The legal framework of the third pillar finds itself in the middle of an identity crisis, since it can neither be identified as a traditional intergovernmental, nor as a supranational institutional framework. Criminal law is a politically sensitive matter, which on the one hand explains why the EU member states are reluctant to submit their powers over the issue to the European level and on the other hand, it implies that if the EU member states really want to cooperate on such an intensive level, they will have to submit some of their powers in order to strengthen EU constitutional law. The article suggests a reform of the third pillar through the method of "communitization", which is exactly what will happen in case the EU Reform Treaty will enter into force. This would offer the ingredients for a true international community in which the ambitious agenda of the Area of Freedom, Security and Justice can realise its aim of a common set of values and principles which supersedes those of each of the member states individually.
War's Legacy in International Investment Law
Authors: Gathii James Thuo 
Published: July 2010

AbstractThis article discusses the role war has played in shaping the rules of international investment law from the late nineteenth century. At the end of the nineteenth century and the beginning of the twentieth century, the move towards institutions, such as arbitration forums, and rules as an alternative to the use of force gave new impetus to the growth of international commercial law and related institutions. These rules and institutions represented the hope that the use of force would be eclipsed as States moved forward towards more cooperative, consensual and non-coercive mechanisms of dispute settlement. Capital-importing states in Latin America however became acutely aware that these institutions and rules did not completely erase the coercive and uneven relations they had with capital-exporting states. In era after era of reformism from the Calvo era, to the NIEO and to the era in opposition to neo-liberal economic governance, capital-importing States have continued to resist and sometimes adapt to the coercive realities of the rules of international investment law. The article begins by tracing the origin of the Drago doctrine as a response to the practice of European states that engaged in aggression and conquest against militarily and economically weaker Latin American states as a means of collecting debts owed to their citizens. It then shows that while the denouement of forcible measures to resolve contract debt was overstated by early twentieth century international lawyers, international law nevertheless provided avenues for dispute settlement outside the use of force in international commercial relations. Thus while protecting commerce from the scourge of war was a primary inspiration for the post-Second World War international economic order, the author shows how war has nevertheless continued to be an animating factor for former colonies particularly with regard to their State responsibility for war damage in the context of foreign investment.
Experience, Temporality and History
Authors: Carr David 
Published: July 2010

AbstractPhilosophers' reflections on history have been dominated for decades by two themes: representation and memory. On both of these accounts, historical inquiry is divided by a certain gap from what it seeks to find or wants to know, and its activity is seen by philosophers as that of bridging this gap. Against this background, the concept of experience, in spite of its apparent rootedness in the present, can be revived as a means of thinking about our connection to the past. After examining variants on the concept of experience, with special attention to its temporality, I argue in this essay that experience can be said to furnish a connection to the past that underlies both memory and representation.
Kant's Biological Conception of History
Authors: Cohen Alix 
Published: July 2010

AbstractThe aim of this paper is to argue that Kant's philosophy of biology has crucial implications for our understanding of his philosophy of history, and that overlooking these implications leads to a fundamental misconstruction of his views. More precisely, I will show that Kant's philosophy of history is modelled on his philosophy of biology due to the fact that the development of the human species shares a number of peculiar features with the functioning of organisms, these features entailing important methodological characteristics. From this main claim will follow three further claims: (1) Kant's teleological view of history is not simply based on ethical considerations that have to do with the moral progress of the human species; rather, it stems from his conception of teleology as developed in his philosophy of biology. (2) Kant's philosophy of history allows for the practice of scientific history. In this sense, Kant's view of history is not merely teleological but involves a mechanical (and thus empirical) element. (3) Just as teleology is useful for furthering mechanical accounts of biological phenomena, teleological history is useful for scientific history.
Understanding Genealogy: History, Power, and the Self
Authors: Saar Martin 
Published: July 2010

AbstractThe aim of this article is to clarify the relation between genealogy and history and to suggest a methodological reading of Nietzsche's Genealogy of Morals. I try to determine genealogy's specific range of objects, specific mode of explication, and specific textual form. Genealogies in general can be thought of as drastic narratives of the emergence and transformations of forms of subjectivity related to power, told with the intention to induce doubt and self-reflection in exactly those readers whose (collective) history is narrated. The main interest in understanding the concept of genealogy and revisiting Nietzsche's introduction of it into philosophy lies in understanding how a certain way of writing and a certain textual practice function that successfully call into question current judgments, institutions and practices. Nietzsche's example, I argue, can provide a paradigm for a critical practice that accounts for historical processes of subject formation in terms of power and turns them against given forms of subjectivity.
Performativity and the Intellectual Historian's Re-enactment of Written Works
Authors: Tyler Colin 
Published: July 2010

AbstractThis article develops and defends a performative conception of historical re-enactment as a fruitful method by which intellectual historians can interpret texts. Specifically, it argues that, in order to understand properly any given text, the intellectual historian should re-enact the performative activities of the writer of that text. The first section analyses one of the most influential and powerful theories of historical re-enactment, namely that found in the later writings of Robin George Collingwood. Drawing on Wittgenstein's theory of family resemblances, certain key insights are identified in Collingwood's theory. Crucially, certain limitations are also stressed. The second section argues that an alternative theory of re-enactment can be developed by drawing on Judith Butler's theory of "performativity". The interpretative implications of a writer's genre, mode of experience, presuppositions, deliberate inventiveness and unintended failures are highlighted. The particularized nature of texts is shown to problematize the writing of unilinear histories of written debates. The article concludes by summarizing briefly the key methodological implications of performative re-enactment as they have been identified in the body of the article.