bluuebunny/crossref_metadata_2025_split huggingface dataset:
Universal International Law's Grammar
Authors: Pulkowski Dirk 
Published: May 2011

Abstract
As the universal geographical reach of the law of nations has become a reality, the universality of international law has come under attack in another respect. Theorists of international relations observe that the international order has become more and more ‘fragmented’ into a variety of issue-specific normative arrangements. In fact, some argue that ‘international law’ (in the singular) is gradually being replaced by a variety of issue-specific ‘international laws’ — including the legal rules of such regimes as trade law, environmental law, the law of human rights, and the law of cultural heritage. This radically particularistic vision of the international order is uncompelling. This chapter argues that while the substantive legal prescriptions under various regimes differ widely, all these regimes also have important commonalities. All subsystems of international law use a common discourse of justification, which permits and often requires decision-makers in different regimes to situate their decisions in relation to other regimes. The shared ground rules for rational discourse that universally apply across the international order notably include concepts of ‘general international law’ and accepted rules of interpretation. Hence, what holds the universe of international law together is not so much a hierarchy of norms or a common rule of recognition. Rather international regimes remain communicatively compatible with one another by virtue of a common discourse.
From Enlightened Positivism to Cosmopolitan Justice: Obstacles and Opportunities
Authors: Ratner Steven R 
Published: May 2011

Abstract
This chapter appraises Simma's methodology as a self-described ‘enlightened’ or ‘modern’ positivist and explores its connections to the vision of world order and global justice toward which it strives, but which, like an uncomfortable dance partner, it does not yet embrace. It discusses cosmopolitan trends for the positivist, and the problem of global distributive justice which is central to the cosmopolitan project.
Are Nuclear Weapons Really Legal? Thoughts on the Sources of International Law and a Conception of the Law imperio rationis instead of ratione imperii
Authors: Thürer Daniel , Zobl Martin 
Published: May 2011

Abstract
The only way a critical observer can consider the question of nuclear weapons is to say that disarmament efforts have not gone far enough. From a legal perspective, the causes of this failure are essentially outmoded sovereignty dogmas that largely continue to influence governments' understanding of international law, and the positivist approach to sources of law associated with those dogmas. This chapter argues that a nuclear disarmament process must emerge from, and be sustained by, society itself. Government support will, of course, also be essential to the success of an initiative of this nature. A cooperative partnership between a wide range of international actors (governments, international organizations, the ICRC, non-governmental organizations (NGOs), and individuals) around a common ultimate goal is thus essential, as is an approximate line of approach.
Multi-Stakeholderism in the Development of International Law
Authors: Benedek Wolfgang 
Published: May 2011

Abstract
This chapter is concerned with the role of multi-stakeholderism in the development of international law, which is an increasingly important phenomenon due to globalization, the growing role of non-State actors, and the emergence of a global civil society which claims to pursue community interests. The main focus of the multistakeholder approach lies with ensuring more inclusive structures of governance. In some fields, such as human rights, environmental law, and the law of the information society, it is more advanced than in other normative fields, such as international economic affairs. Multi-stakeholderism allows for the building and the expression of community interests and thus also provides orientation and important preparatory work for the inter-governmental process. The involvement of all relevant stakeholders strengthens the effectiveness of law — creating processes and the subsequent implementation of the law.
Running in Circles: Regionalism in World Trade and How It Will Lead Back to Multilateralism
Authors: Hilf Meinhard , Salomon Tim René 
Published: May 2011

Abstract
International law is currently seeing a trend towards regionalism. This is in some ways to be applauded. It seems necessary to put more weight on regional codes for human rights protection, for example, as regional codes tend to have more authority due to their close connection to the cultures and peoples they seek to govern. Bruno Simma has recently commented on the issue of fragmentation, to which the development of regionalism in the World Trade Organization (WTO) will be linked in this contribution. This chapter focuses on regionalism in a WTO context and attempts to glance briefly into the future as it may be after the demise of the WTO, which — although not to be wished for — has been discussed as a theoretical possibility. This gaze behind the horizon may very well contain lessons for the WTO today.
The UN Laissez Passer: Legal Reflections and Managerial Issues
Authors: Münch Wolfgang 
Published: May 2011

Abstract
As at 30 April 2010 there were 35,577 UN Laissez Passers (UNLPs) in circulation, issued to officials of organizations of the UN family and a few other organizations that had concluded relationship agreements with the United Nations (UN). According to UN Document CEB/2009/HLCM/HR30 dated 7 May 2009 the overall number of UN staff amounted to 70,792 persons as at 31 December 2008. The red colour of a UNLP indicates the high position of its holder among UN officials and his/her diplomatic status. This chapter focuses on a particularly eminent holder of a red UNLP. It aims to provide some key factual information on the issuance of UNLPs, to address some legal questions, and to highlight certain administrative issues related to UNLP management.
Legal Crisis Management: Lawfulness and Legitimacy of the Use of Force
Authors: Neuhold Hanspeter 
Published: May 2011

Abstract
When governments consider the use of force in a crisis their decision will be determined by the perceived necessity to protect the supreme values and interests of their State and the international community, on the one hand, and the expected costs, on the other. Although they will prefer to act within the bounds of their legal obligations, respect for international law is unlikely to be a priority in such a situation. This chapter examines the justifications invoked by the US when it decided to employ force, going it alone or acting together with other States, in major post-Second World War international crises: in the Cuban missile crisis of 1962; against the Serb forces in Kosovo in 1999; against Al-Qaeda and the Taliban in Afghanistan in 2001; and against the regime of President Saddam Hussein in Iraq in 2003. These four cases have been selected because in each of them the legal grounds on which the administrations in Washington DC relied were different, and in three of them the use of armed force was controversial.
Sketching ‘Community Interest’ in EU Law
Authors: Weiss Friedl 
Published: May 2011

Abstract
The concept of ‘common interest’, used interchangeably with that of ‘community interest’ and more recently ‘EU interest’, is used in different contexts and for ostensibly different purposes, including fundamental principles, particular market freedoms or rights, or underpinning exceptions from them. It has been proclaimed in provisions both of EU primary law and secondary law, and applied in adjudication by the European Court of Justice (ECJ) and by the Court of First Instance (CFI). This chapter provides some kind of descriptive summary inventory illustrating such instances of practice, constituting some raw material for the possible later development of a theoretical framework of analysis of their common properties and characteristics.
The Specificity of Human Rights and International Law
Authors: Conforti Benedetto 
Published: May 2011

Abstract
This chapter argues that one should not exaggerate the autonomy of the international regime on the protection of human rights. Indeed, the case law of human rights courts shows that there are three different ways of dealing with questions of international law. First, there are actually cases of departure from the common rules of international law, a solution which is, and remains, completely limited to the field of human rights law. Secondly, there are cases of normal application of international law as it is. Lastly, there are cases where the interpretation of international law given by the courts has had an influence on it, contributing to its evolution. These three categories of cases are illustrated by a number of examples.
Architectural Clarity or Creative Ambiguity? The Place of the Human Rights Council in the Institutional Structure of the United Nations
Authors: Fassbender Bardo 
Published: May 2011

Abstract
The creation of the Human Rights Council (HRC) in 2006 can be seen as the most important change in the institutional structure of the United Nations (UN) since its inception. This statement is perhaps somewhat surprising because the Council was not established with ease. It was a child of both widespread discontent (with the work of the Commission on Human Rights) and of compromise (between those with higher aspirations for a new UN human rights body and those who wished to maintain the status quo, if not in form then in substance). This chapter takes a closer look at the institutional structure of the UN as it emerged from the creation of the HRC. Do we really see ‘architectural clarity’, or rather creative ambiguity? And which of the two is better in this case? Special attention is given to the legal and the working relationship between the Council and the principal organs of the UN.
Human Rights and Democracy: Is There a Place for Actual People(s)?
Authors: Kratochwil Friedrich 
Published: May 2011

Abstract
This chapter provides some critical reflections on law and politics in the era of globalization. The argument is presented in three steps. First, the chapter develops a conception of politics that is independent of the State and its institutions. Secondly, it inquires into the possibilities of democratic participation in a globalizing world. Here the criterion that ‘what concerns all has to be decided by all’ will serve as foil. This then provides the background for the discussion which takes up the issue of legitimization by relying on the universal value of human dignity as the main source, after the concrete people(s) have largely disappeared from the discourse together with the State and its autonomy. It is argued that this reliance on the ‘universality’ of human dignity as the key value, cleansed from all political and historical contingencies, encourages imperialism and the rule by experts or ‘professionals’, both of which have deleterious effects on law and democratic politics.
Reservations to Human Rights Treaties: Not an Absolute Evil…
Authors: Pellet Alain , Müller Daniel 
Published: May 2011

Abstract
This chapter on reservations to human rights has its place in a volume devoted to the evolution of international law from bilateralism to community interest. It could even be said that it is at the very heart of the dialectic called by these two trends: on the one hand, reservations, in a way, ‘bilateralize’ the relations between the parties to multilateral treaties while, at the same time, facilitating a wider acceptance of the core elements of the treaties in question and, therefore, strengthening the global community interest. This dialectic is vividly present with regard to human rights treaties even though, according to a dominant view among human rights activists, reservations to those treaties are seen as an absolute evil. They are not.
Business Enterprises in Public International Law: the Case for an International Code on Corporate Responsibility
Authors: Heinemann Andreas 
Published: May 2011

Abstract
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

Abstract
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

Abstract
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.
The Right of Access to Justice to Challenge the Security Council's Targeted Sanctions: After-thoughts on Kadi
Authors: Francioni Francesco 
Published: May 2011

Abstract
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

Abstract
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

Abstract
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

Abstract
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

Abstract
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

Abstract
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.