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.
Veronica L. Taylor
This chapter addresses international law in Afghanistan. States where the ‘post-conflict’ period is, in fact, a series of continuing sub-national conflicts, are often coded as ‘failed’ or ‘fragile’ and are also criticized as failing in their embrace of international law. In the case of Afghanistan, such ‘discourses of deficiency’ also erase some important legal history. For most of its history, Afghanistan has been contingent as a Westphalian state. This means that it has also had a fluid relationship with the institutions and norms of international law, including the normative discourse and practice of the international rule of law. Although Afghanistan has been a member of the United Nations since 1946, and thus a contributor to international law in the twentieth century, it is seen more as a subject of international law. After considering these issues, the chapter then highlights the complexity of Afghan’s location within, as well as its relationship with, international law, international legal institutions, and international legal norms.
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.
This chapter argues that contemporary accounts of Africa and International Criminal Law (ICL), divergent and acrimonious as may be, generally rely on a foreshortened history of this relationship, one that begins in the 1990s. In contrast, the chapter aims to show that ‘Africa’ and Africans were present at ICL’s inaugural moment in 1919, and that for much of the ensuing period ‘Africa’, Africans (and later African states) have been a ‘present absence’, to use Toni Morrison’s phrase, but present and represented nonetheless. Moreover, by tracing the story of Africa and Africans’ ‘present absence’ in ICL from since 1919, and the continued silencing thereof in historiography of the field today, the chapter aims to highlight three threads of critique—concerning ICL’s racial politics, imperial entanglements and ‘regime of representation’—that weave their way, at times together at times apart, from 1919 until the present. The chapter will end by re-considering the relationship between Africa and ICL in light of this longer history, arguing that when doing so the question becomes not whether ICL (or the ICC) might be a field that operates on neo-colonial and racist lines, but whether it might have been anything else (or might yet be).
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.
This chapter looks at debates about Asia in scholarship on the history and theory of international law. It also traces the evolution of concepts of sovereignty in the context of Asia’s colonial history, and more recent preoccupations with development. What counts as the ‘history and theory’ of international law is itself continuously changing and scholars must engage with new materials and issues. Possible new initiatives include deeper research on Asian traditions and concepts of rule and governance, justice, and order; approaching the history and theory of international law in Asia in global rather than regional terms; and turning to other disciplines—such as social/cultural anthropology—to develop new insights into the questions of governance and territory, and the powerful imaginaries of nationhood, sovereignty, and empire that animate the peoples of Asia, and that have not been entirely displaced by modern concepts of sovereignty and globalization. Examining these themes illuminates the important issues of how Asian states have attempted to innovate and use international law to further their own interests.
This chapter traces the broad history of Asia’s engagement with international law, focusing on three aspects that continue to have resonance today. First is the experience of colonialism by India and many other countries across the continent. Second, the unequal treaties of the nineteenth century and the failure to recognize the People’s Republic of China for much of the twentieth century encouraged a perception that international law was primarily an instrument of political power. Third, the trials that followed World War II left a legacy of suspicion that international law deals only selectively with alleged misconduct, leaving unresolved many of the larger political challenges of that conflict with ongoing ramifications today. The chapter then argues that Asian states’ ongoing ambivalence towards international law and institutions can also be attributed to the diversity of the region, power disparities among states, and the absence of ‘push’ factors driving greater integration.
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 studies international law in Australia. As a former British colony, Australia received a Western and specifically British tradition of international law, which was initially tied to imperial interests and even the possession of its own colonies in the Pacific. While its international legal personality matured in the 1920s and 1930s, it was only after the Second World War that Australia came to exercise a genuinely independent approach to international law. A hallmark of Australian policy and practice has been a broadly bipartisan political commitment to international law and institutions and to multilateralism, albeit affected by its close alliance with the United States. As a self-described ‘middle power’, Australia views the international legal order as giving it a voice on the international plane, securing its territorial and economic interests, and reflecting the values of the Australian community. Accordingly, Australia participates actively in the various specialized branches of international law and their associated governance mechanisms and dispute resolution procedures, although it occasionally strays from full compliance with its obligations.
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.