This chapter examines the issue of accountability in relation to international organizations (IOs). The research questions deserving most intense theoretical and empirical attention are, first, who should be accountable to whom and, second, to what extent they actually are. It outlines some approaches to answering these questions; highlights the most promising one; and sketches the contours of a possible solution to a major problem that plagues that approach. The chapter shows that the selection and design of IOs plays a special role in overall assessments of accountability. The most persuasive answer to the first question remains some version of the principle that everyone who is affected by a political decision should be able to influence that decision. Even under conditions of global interconnectedness, this does not mean that everyone should have a say on any decisions taken anywhere else: decision-makers should be accountable to specific constituencies in proportion to the power they wield over those constituencies.
This chapter examines the problems that could arise when a state invokes self-defence to justify action against terrorist groups in another state. It first considers indirect armed attack against armed groups and the controversy surrounding the use of self-defence where armed groups are controlled by a foreign state, with particular reference to the International Court of Justice (ICJ) jurisprudence. It then discusses the possibility that an armed attack could occur, permitting a forcible response in the context of international law, without attribution to a state by citing the Nicaragua case in which the ICJ pronounced that self-defence is permissible against a host state in effective control of an armed group. The chapter also looks at the case of Afghanistan and its relationship to Al Qaeda as an example of a state’s claims of self-defence against terrorism.
Ignacio Gómez-palacio and Peter Muchlinski
This article outlines the major legal and policy issues that the development of rights to admission and establishment raise under international law. It begins with an assessment of the meaning of the terms ‘admission’ and ‘establishment’ as well as the related term ‘market access’. It goes on to consider various interests of the host country and the investor that inform the development of legal responses in this field. It continues with a review of the major trends in admission and establishment provisions in national laws and in international investment agreements. As regards the international dimension, this article relies to a great extent on the significant work done in this regard by United Nations Conference on Trade and Development and seeks to update that work in the light of more recent developments. Finally, by way of conclusion, it seeks to relate the foregoing discussion to some wider policy issues.
James Thuo Gathii
This chapter traces the two major trends in thinking about Africa’s engagement with international law from a historical perspective: ‘contributionists’ who emphasize Africa’s contributions to international law, on the one hand; and critical theorists who examine Africa’s subordination in its international relations as a legacy that is traceable to international law, on the other. For authors such as Taslim Elias Olawale, ‘inter-civilizational participation in the process of crafting genuinely universal norms’ has historically involved Africa as a central player. This emphasis on Africa’s participation in the formation of international law amounts to contributionism. Critical theorists, such as Makau Wa Mutua, Siba Grovogui, Kamari Clark, Ibironke Odumosu, and Obiora Okafor, among others, by contrast focus on the manner in which modern international law continues the legacy of colonial disempowerment while providing spaces for resistance and reform.
Fatiha Sahli and Abdelmalek El Ouazzani
This chapter argues that the impact of Islam on the contribution of North Africa in the production of the norms of international law has been but relative. It must be associated with another reality, which is that of the relationships between powers and their competition for domination. All through the centuries of coexistence of the Muslim empires and the European nations, their reciprocal relations were guided by war strategies and by the power games that dominated the Mediterranean world. If there is a contribution of the Muslims to international law, it is in the field of the protection of the laws of the persons, particularly in the laws of the Dhimmi, and more precisely in the laws of the religious minorities and the humane treatment of the war prisoners that it could be found.
Michael N. Schmitt
Military air operations remain the domain least regulated by international law. This chapter begins by discussing the history of air operations, including efforts to develop the law of air warfare. It then examines the law of air warfare from the perspective of airmen. It does so by addressing four main questions: (1) Where may air operations be conducted? (2) Who and what may be attacked? (3) How must air operations be conducted? (4) What weapons may be used?
This chapter examines Alberico Gentili’s life and teaching; Gentili and the history of international law; and Gentili and the doctrine of war. In Oxford, Alberico Gentili wrote a large number of works, which can be divided in four main groups: treatises on topics of the civil law, law of nations, issues pertaining to political theology, and various questions of legal erudition. His major works include Three Books on the Law of War, Two Books on the Roman Armies, and Two Books of Spanish Attorneyship.
Asif H. Qureshi
In an international investment system wherein an external conflict resolution system is shopped for as and when needed, the introduction of an appellate system in International Centre for Settlement of Investment Disputes (ICSID) with potential precedential consequences for other bilateral investment systems poses interesting challenges. This article presents in brief some of the arguments for an appellate process in the investment sphere. It also discusses various developments that have led to a number of learned conferences on investment arbitration in which the proposal for an appellate system has been the subject of discussion involving both academics and practitioners in the field. It identifies some of the potential appellate options, and focuses on the development perspective to such a proposal. This article is proffered mainly as a framework paper focusing on some key issues. It discusses the inter alia involved in the development perspective in the establishment of an appellate process in the investment sphere.
This article seeks to analyse the development of the relationship between different systems and rules of law as the applicable law of an investment dispute. It identifies a few aspects of the procedural framework in which arbitral tribunals find themselves, notably the jura novit curia principle. This is followed by an overview of different approaches to internationalizing international investment law applicable to claims brought by private investors on the basis of a contract with the host state. In this respect, investment arbitration is to be distinguished from international commercial arbitration at large as well as adjudication in national courts. Also, investment arbitration is a field in which the principle of party autonomy, although of indisputable importance, does not reign supreme. This is followed by more practical analyses of the law, or legal rules, applicable to contract claims and treaty claims respectively.
Disputes involving Olympic athletes can arise from a wide range of decisions made by a host of entities. A disputed decision may involve the eligibility of an athlete, employment of coaches and staff, organizational governance, doping, and commercial contracts. Three disputes involving athletes and the modern Olympic games show how arbitration has come to play a central role in resolving contested decisions of sporting associations. First, the case of sprinter Harry Reynolds illustrates the limitations of using national courts to challenge doping-related sanctions. Second, the eligibility struggles of Oscar Pistorius demonstrate how athletes and national sporting associations can benefit from arbitration’s efficiency. Finally, the case of Claudia Pechstein offers a recent example showing the deference given arbitration by national courts, for better or worse.
The archipelagic regime in Part IV of the 1982 United Nations Convention on the Law of the Sea (LOSC) was aimed at resolving an issue that had long challenged the international community, namely, whether a group of islands should be considered a single entity and thus subject to a special regime distinct from the rules applicable to continental land masses and individual islands. This chapter examines the critical issues associated with the implementation of Part IV as well as future issues that may arise. It first discusses the development of the archipelagic regime. It then addresses the definition of an archipelago and an archipelagic State, archipelagic baselines, and archipelagic waters, respectively, and examines issues in implementation. It considers the issue of ‘dependent archipelagos’ and whether there is a lacuna in LOSC in this regard. The chapter concludes with a discussion on future areas of focus for the archipelagic regime.
Armed Conflict and Forced Migration: A Systematic Approach To International Humanitarian Law, Refugee Law, And International Human Rights Law
This chapter examines the application of three branches of international law to forced migration and refugee protection in an armed conflict. It provides a comparative assessment of these branches of international law in terms of their application to protection of refugees in war, refugees fleeing war, and refugees in post-war contexts. The analysis indicates that international humanitarian and refugee law are not a panacea in terms of protection, and that it is international human rights law that fulfils the central function of filling the gaps in protection left by humanitarian and refugee law.
Jan Wouters and Jed Odermatt
This chapter examines the legal/judicial accountability of international organizations (IOs). ‘Judicial review’ in reference to acts of IOs has been defined as ‘a process by which a court of law determines whether a legal person has acted substantively within the scope of its powers and procedurally in a correct manner’. Using this definition of review, we find that there is a serious lack of judicial review of acts of IOs at the international level. The chapter is organized as follows. The first part discusses the variety of IOs that are now active and the diverse types of acts they produce. It then examines the fora where these acts can be legally challenged. The next part examines the grounds for review upon which acts of IOs are challenged and the legal consequences that flow from an act found to be in violation of legal requirements. Finally, the chapter examines non-judicial review mechanisms, such as non-compliance and withdrawal from an organization. It concludes that the legal review of acts of IOs remains an underdeveloped area of the law of IOs, especially given the impact such acts can have on states and individuals.
Ian H. Rowlands
What is ‘atmosphere’ and what is ‘outer space’? The term ‘atmosphere’ is sometimes used interchangeably with ‘air’. Moreover, it is often assumed that ‘outer space’ is simply the area above and beyond ‘air space’ (another term often used). While understandings such as these are certainly reasonable for most discussions, the effective development of international environmental law may well demand more precise definitions. This article provides an overview of key atmospheric and outer space environmental challenges that have been – and continue to be – addressed by international environmental law. It examines transboundary air pollution, ozone layer depletion, global climate change, and outer space. For each of these issue areas, the article describes a particular environmental problem (or set of environmental problems). It also reviews key elements of the international legal response (including especially significant agreements), focusing on innovative approaches taken as part of this response. In addition, the article discusses transboundary transport of industrial pollutants as well as major industrial accidents.
This chapter offers an account of Australia's engagement with the international legal order, through different aspects of the relationship: designing international institutions, litigating in the World Court, and implementing international standards. These are only fragments of the full picture, but they illustrate both Australia's embrace of and distancing from the international legal order. Australia's relationship with the international legal order overall is marked by a deep strand of ambivalence. It has played both the part of a good international citizen as well as that of an international exceptionalist. In some fields, Australia has engaged creatively in international institution-building, even if with a wary eye to protect certain Australian interests. In other areas, particularly human rights, the relationship is distinctly uneasy, with Australia appearing to believe that international standards should regulate others and that it is somehow above scrutiny.
This chapter focuses on Article 2(4) of the UN Charter, which prohibits the use of force in international relations. After discussing pre-Charter attempts to restrict states’ freedom to resort to warfare, it examines the emergence of a normative doctrine on a bellum justum. It considers the history of Article 2(4) and the other articles of the Charter that touch on the use of force and outlines exceptions to the prohibition on the use of force, including the so-called Uniting for Peace procedure. It examines the interpretation of Article 2(4) in the practice of the General Assembly, Security Council, and International Court of Justice), together with its inclusion in a number of multilateral treaties. Finally, it assesses the question whether the use of force after 1945 conforms to the object and purpose of Article 2(4), as well as the legal status of the prohibition to use force in contemporary international law.
This chapter sets out the international law of baselines and identifies past, present, and possible future problems in this area of the law of the sea. It begins by considering the so-called ‘normal baseline’, consisting of the low-water line along the coast, and asks whether this baseline is fixed or ambulatory. It examines specific categories of coastal features that make up the normal baseline, including human-made coastal defences, harbour works, low tide elevations, and reefs. It then turns to the various baselines formed by straight line segments, including lines closing mouths of rivers, bay closing lines, port closing lines, straight baselines (stricto sensu), and archipelagic baselines.
This chapter notes that the Austrian writer Bertha von Suttner was one of the leading figures of the late 19th-century peace movement. Her novel Die Waffen nieder! (Lay Down Your Arms!) was published in 1889 and was soon translated into the most important European languages. In 1891, Suttner founded the Austrian Society for Peace (Österreichische Gesellschaft der Friedensfreunde) and was the major influence on Alfred Nobel’s decision to include a peace prize among those prizes provided in his will. She was awarded Peace Laureate in 1905. Suttner’s attitude towards international law reflects the 19th-century optimism of liberal internationalism, characterized by its belief in rational thought and its advocacy for international cooperation within international institutions. Suttner was a talented propagandist whose aristocratic social background helped her to gain access to circles of power and influence.
Between Stability and Change in the Law of the Sea Convention: Subsequent Practice, Treaty Modification, and Regime Interaction
The UN Convention on the Law of the Sea (LOSC) contains both explicit and implicit mechanisms to deal with the changing international environment. Subsequent practice has had a significant impact on the development of the LOSC framework and will continue to do so in the future. This chapter begins by describing the process of modification by subsequent practice in general. It then explores examples of modification in the LOSC and looks at the role of subsequent practice in the process of regime interaction between the law of the sea and other regimes. It examines alternative mechanisms that facilitate informal adaptation and regime interaction in the LOSC, therefore reducing the need for modification by subsequent practice. The final section draws some conclusions regarding the evolution of the LOSC.
In the past century, a large number of bilateral, regional, and global agreements have been adopted relating to the protection, preservation, conservation, and management of the Earth's terrestrial and marine species and genetic resources. Despite the vast amount of international law relating to the conservation of biological resources, species, habitat, and genetic diversity loss is now considered to be reaching crisis proportions, with potentially catastrophic consequences for humankind. This article examines the current international legal regime for the protection of the Earth's biological resources. It begins with a discussion of the meaning of the term ‘biological resources’, the philosophical rationales for their protection, and the theoretical approaches thereto. The article then examines the various legal regimes and regulatory measures that have been adopted. The types of regimes for the conservation of biological resources include the regulation of harvest (harvest of species and genetic resources), habitat protection, and regulation of trade (control of exploitation and introduction of alien or invasive species). The article also considers measures regulating direct threats and indirect threats.