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Excesses of responsibility: the limits of law and the possibilities of politics

Ainley, Kirsten
Fonte: Cambridge University Press on behalf of the Carnegie Council for Ethics in International Affairs Publicador: Cambridge University Press on behalf of the Carnegie Council for Ethics in International Affairs
Tipo: Article; PeerReviewed Formato: application/pdf
Publicado em //2011 Português
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Since 1945 responsibility for atrocity has been individualized, and international tribunals and courts have been given effective jurisdiction over it. This article argues that the move to individual responsibility leaves significant ‘excesses’ of responsibility for war crimes unaccounted for. When courts do attempt to recognize the collective nature of war crime perpetration, through the doctrines of ‘command responsibility’, ‘joint criminal enterprise’ and ‘state responsibility’, the application of these doctrines has, it is argued, limited or perverse effects. The article suggests that instead of expecting courts to allocate excesses of responsibility, other accountability mechanisms should be used alongside trials to allocate political (rather than legal) responsibility for atrocity. The mechanisms favored here are ‘Responsibility and Truth Commissions’, i.e. well-resourced non-judicial commissions which are mandated to hold to account individual and collective actors rather than simply to provide an account of past violence.

Twenty years of the WTO Appellate Body’s “fragmentation jurisprudence”

Lang, Andrew T. F.
Fonte: Emerald Group Publishing Limited Publicador: Emerald Group Publishing Limited
Tipo: Article; PeerReviewed Formato: application/pdf
Publicado em //2015 Português
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The World Trade Organisation’s new dispute settlement machinery was one of a number of new international courts and tribunals established during the long decade between the end of the Cold War and the beginning of the new millennium. For international lawyers – long accustomed to life on the margins – the proliferation of new and vibrant specialised regimes of international law was both energising and anxiety producing. At the heart of the anxiety, as Koskenniemi and Leino have described,1 was a concern about the incoherence of international law, famously leading at the end of the 1990s to a debate amongst international lawyers about the dangers of the growing normative incoherence of the system. What would happened when two international tribunals sought to apply inconsistent rules to the same dispute? Could one tribunal legitimately consider rules of law which fell outside its specialised mandate, so as to reduce the chance of conflict? Given its position as one of the most significant, and certainly the most active, of this new generation of international tribunals, the WTO’s Appellate Body has been closely scrutinised for the approach it has taken in cases which appear to raise questions about the relationship between WTO law and so-called ‘non-WTO law’...

Book review: Moral accountability and international criminal law: holding agents of atrocity accountable to the world

Martin, Kenneth
Fonte: Blog post from London School of Economics & Political Science Publicador: Blog post from London School of Economics & Political Science
Tipo: Website; NonPeerReviewed Formato: application/pdf
Publicado em 07/08/2013 Português
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"Moral Accountability and International Criminal Law: Holding Agents of Atrocity Accountable to the World." Kirsten J Fisher. Routledge. April 2013. --- How do we hold accountable the agents, individuals and collectives guilty of ordering mass murder? Can individual responsibility ever be determined in the context of collectively perpetrated political crimes? Kirsten J Fisher’s book attempts to answer these questions, in a book that will appeal to students of law and human rights. This book makes a valiant effort to put forward definite conclusions on where international criminal law should head, and what it should be based upon, concludes Kenneth Martin.

Citizenship entitlements beyond borders?: identifying mechanisms for access and redress for affected publics in international environmental law

Mason, Michael
Fonte: Lynne Rienner Publishers Publicador: Lynne Rienner Publishers
Tipo: Article; PeerReviewed Formato: application/pdf
Publicado em /09/2006 Português
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I argue that although international law is state centric in nature, there is a growing body of international environmental law that allows at least some input from public actors in implementing key substantive and procedural obligations. The evolution of these environmental entitlements is linked to the global diffusion of democratic norms of civic participation, the appli-cation of the nondiscrimination principle in both public and private inter-national law, and the cosmopolitan reach of human rights claims. It is at the intersection of individual and nongovernmental organization (NGO) rights with interstate obligations that transnational citizenship entitlements are emerging—notably equal opportunities for access and redress for affected publics. I critically survey relevant multilateral environmental agreements to gauge the significance of rule making bestowing entitle-ments on publics affected by transboundary and global environmental harm.

Theorising international environmental law

Humphreys, Stephen; Otomo, Yoriko
Fonte: London School of Economics and Political Science Publicador: London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /02/2014 Português
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From The Oxford Handbook of International Legal Theory (Florian Hoffmann and Anne Orford, eds, Oxford UP, forthcoming 2014). --- This paper, part of a larger work on international law theory, sketches some early lines of inquiry towards a theoretical understanding of international environmental law. As the body of international law regulating human interaction with the natural world, one might expect this branch of law to be a cornerstone of the international system. Yet in practice, international environmental law's reach is strikingly circumscribed. Little of the governance of natural resources, for example, is 'environmental'. Subsisting at the periphery, environmental law focuses on conserving particular (rare, exotic) species and 'ecosystems', and curbing certain kinds of pollution. Its principles are vague, peppering the margins of rulings within other judicial fora: it is quintessential soft law. In this paper, we suggest that international environmental law's dilemmas are due to two competing heritages. On one hand, this law enshrines the peculiar pantheism of the European romantic period, positing the 'natural world' as sacred, inviolable, redemptive. On the other, its main antecedents are found in colonial era practices...

Hybrid norms in international law

Heyvaert, Veerle
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /01/2009 Português
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The paper analyses the emergence of legal provisions in international law that can neither be categorised as hard law or soft law, but contain elements of both. It identifies such provisions as 'hybrid norms.' The paper examines common but differentiated responsibilities (CBDRs) for financial and technical assistance under the Stockholm Convention on Persistent Organic Pollutants, and argues that the implementation of State responsbilities for assistance through a heterarchical implementation network, involving the cooperation between State and transnational actors, hybridises the international legal framework. While hybridisation is a productive response to the challenge of regulating global risks, it also puts pressure on the adoption of enforcement mechanisms and problematises the communicative role of international law. The paper preliminarily maps out three responses to the challenges of hybridisation: a conservative response, a contractual one, and an administrative response.

The legality of NATO's action in the former republic of Yugoslavia (FRY) under international law

Chinkin, Christine
Fonte: Cambridge University Press for the British Institute of International and Comparative Law Publicador: Cambridge University Press for the British Institute of International and Comparative Law
Tipo: Article; PeerReviewed Formato: application/pdf
Publicado em /10/2000 Português
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Airstrikes on Isis targets in Syria and Iraq are legal under international law

Alaaldin, Ranj; Khan , Bilal
Fonte: Blog post from London School of Economics & Political Science Publicador: Blog post from London School of Economics & Political Science
Tipo: Website; NonPeerReviewed Formato: application/pdf
Publicado em 01/10/2014 Português
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Last week, the United Kingdom’s parliament voted to once again intervene militarily in Iraq in order to attack the terrorist group Isis. This follows more than a week of US and Arab world airstrikes on Isis targets in Syria. While the Iraqi government requested assistance from British and other foreign powers, the Syrian regime has not asked for intervention. Many commentators have questioned the legality of such a move under international law. In this article, Ranj Alaaldin and Bilal Khan argue that airstrikes on Isis targets in both Syria and Iraq are legal and justified under international law. It is the defence of Iraq that triggers the right to use force against Isis targets in Syria, they write.

Legal regimes and regimes of knowledge: governing global services trade

Lang, Andrew T. F.
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /07/2009 Português
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The starting point of this paper is that if we want to understand the way in which international law structures and mediates the deployment of power in international life, then we need to attend to the relationship between law and knowledge - the relationship between international legal processes and the processes by which we collectively come to know, describe, and imagine the world in which we live. My aim is to explore this relationship empirically by looking in detail at one case study, namely the international legal regime governing international trade in services, and specifically, the World Trade Organisation's General Agreement on Trade in Services. Over the last fifteen years, this new body of international law has developed and evolved alongside a corresponding body of social scientific expertise on the nature and dynamics of the global services economy. I tell a story of the co-evolution of these two systems - the legal regime on the one hand, and the body of knowledge on the other - and try to trace in detail the ways in which law and legal processes have been present in processes of knowledge production, shaping the way the global services economy is collectively imagined and its dynamics understood. I offer four axes along which to think about this relationship...

The case for pluralism in postnational law

Krisch, Nico
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /07/2009 Português
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As the divide between domestic and international law becomes blurred, paradigms for the structure of the new, postnational legal order remain elusive, on both the analytical and the normative plane. In this paper, I inquire into the normative status of two main candidates, constitutionalism and pluralism. The constitutionalist ideal of a coherent, hierarchically structured order in a framework defined by law is often seen as an attractive goal also for postnational politics, but on closer look it turns out to face similar problems as in domestic divided societies, especially with respect to power, integration and the rule of law. Pluralism, on the other hand, is often regarded as better suited to conditions of radical diversity as they prevail in the postnational realm. The openness of legal relations between different parts of a political order is seen to foster greater adaptability, responsiveness to contestation and an ability to steer a path between competing (and equally deficient) supremacy claims. Yet while these are important virtues, I argue that a defence of a pluralist postnational law has to find its starting point elsewhere: in the public autonomy of citizens in the definition of their legal and political framework. Such an approach shifts the focus to social attitudes and identities...

Global administrative law and the constitutional ambition

Krisch, Nico
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /01/2009 Português
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The emergence of global governance has called into question many of the tools and concepts by which the traditionally dichotomous spaces of national and international politics and law were ordered, and various structuring proposals are competing to take their place. In this paper I examine two such proposals – global constitutionalism and global administrative law. Both represent distinct visions of how to approach the challenge, their key difference lying in their respective ambitions: constitutionalist visions set out to describe and develop a fully justified global order, while global administrative law is more limited in scope, focusing on particular elements of global governance and confining itself to the analysis and realisation of narrower political ideals, especially accountability. Such a limited approach raises serious problems, most prominently difficulties in separating ‘administrative’ from ‘constitutional’ issues and the risk of legitimising illegitimate institutions. But it also bears significant promise as it allows to focus on, and begin to answer, crucial questions of global governance without leaping to grand designs borrowed from dissimilar contexts and likely at odds with the fluid and diverse character of the postnational polity.

Politics, ethics & the law, legal practice & scholarship

van Gerven, Walter
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /12/2008 Português
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This paper examines legal practice, legal scholarship, ethics and politics from the viewpoint of an academic who in his lifetime has, besides having been a professor, been a vice-rector, a civil servant, an advocate general and an anti-corruption officer.. As a vice-rector he acknowledged the essence of decision making: based on intuition kept in check by deliberation. As a civil servant he learned to involve considerations of general interest in the decision making process. As an advocate general he tried to combine assistance to the Court with assistance to the legal community in a multicultural and pluralist European environment. As an “anti-corruption” officer he used his judicial experience to advance reform in the EC Commission. As an academic he sought to promote the “bottom up” approach of comparative law: from judicial (and legislative) solutions to general principles which the EU member states have in common.

Managing the intersection of utilities regulation and EC competition law

Monti, Giorgio
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /04/2008 Português
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Utilities regulation in the Member States is always subject to the application of EC competition law. However, this undermines the effectiveness of utilities regulation and a more flexible standard should be devised by the European Courts. The Court of First Instance has an opportunity to do so in two pending appeals where the Commission found an infringement of Article 82 EC after the actions of the dominant firm had been endorsed by the national telecommunications regulator. The grounds for affording greater latitude to regulators are threefold: first the regulator should be free to make decisions on economic grounds that support dynamic over allocative efficiency ; second it should also be free to make decisions on non-economic grounds to prioritise other objectives at the expense of competition; and third the present scope of EC competition law is so wide that in several instances the Commission acts in a regulatory manner, stepping over tasks best left to the regulator. No general principle is recommended to demarcate the borderline between competition law and sector regulation but a case-by-case assessment should be carried out to determine whether the application of competition law would cut across the policy choices reached by the utilities regulator...

Should states have the right to punish municipal offences committed abroad?

Chehtman, Alejandro
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /02/2008 Português
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This paper provides a philosophical critique of the principles that currently govern extraterritorial criminal jurisdiction under public international law. I start by outlining an interest-based justification for the right to punish offenders which, I suggest, is sensitive to the territorial dimension of the criminal law. On its basis, I argue that the nationality and passive personality principles have hollow foundations; by contrast, this justification fully explains what makes the territoriality and protective principles morally sound. Finally, this paper takes issue with the two most influential justifications for legal punishment available in the literature, i.e., retribution and deterrence. It argues that when pressed against the issue of extraterritoriality, they are committed to conferring upon states universal criminal jurisdiction for municipal offences. Although this does not prove them wrong, it is an implication that few of their supporters would be happy to endorse.

The open architecture of European human rights law

Krisch, Nico
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /10/2007 Português
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The evolution of the European human rights regime is often described in constitutionalist terms: as the move towards an integrated order with the European Convention of Human Rights as its “constitutional instrument” at the top. In this article, I seek to show that this description is misguided and that the regime is better regarded as pluralist – as characterised by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The emergence and workings of this pluralist order are traced through the interaction of the European Court of Human Rights with domestic courts in Spain, France, the European Union and the United Kingdom. All these cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in day-to-day practice. I begin to identify factors that have led to this convergence and conclude that central characteristics of pluralism – incrementalism and the openness of ultimate authority – seem to have contributed to the generally smooth evolution of the European human rights regime in a significant way. This finding suggests a broader appeal of pluralist models as alternatives to constitutionalism in the construction of postnational authority and law.

International economic governance and human rights accountability

Salomon, Margot E.
Fonte: Department of Law, London School of Economics and Political Science Publicador: Department of Law, London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em /10/2007 Português
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The focus on development and poverty reduction by the World Bank and the International Monetary Fund has increased the scope, and opportunity, for these influential international financial institutions to consider the human rights implications of their policy-based operations. Some notable advances have been made, such as greater attention by the Bank to the links between securing human rights and economic growth. Still, the negative impact these institutions themselves may have on the exercise of basic socio-economic rights by people in borrowing countries, due to the particular policies they pursue, has not been acknowledged. Given the functioning of international economic governance today it is necessary to consider the human rights accountability, not just of the developing states, but of international actors that influence the direction of their social and economic policies.

Of austerity: human rights and international institutions

Salomon, Margot E.
Fonte: The London School of Economics and Political Science Publicador: The London School of Economics and Political Science
Tipo: Monograph; NonPeerReviewed Formato: application/pdf
Publicado em //2015 Português
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Austerity measures in many European countries have led to the violation of social rights and widespread socio-economic malaise. In the case of countries subjected to conditionality imposed by external institutions for the receipt of loans, the resultant harms have highlighted responsibility gaps across a range of international institutions. Two recent legal developments come together to expose these gaps: Greece’s argument in a series of cases under the European Social Charter that it was not responsible for the impact on the right to social security brought about by austerity measures since it was only giving effect to its other international obligations as agreed with the European Commission, the European Central Bank and the International Monetary Fund (the Troika), and the concern to emerge from the Pringle case before the European Court of Justice that European Union institutions could do outside of the EU that which they could not do within the EU – disregard the Charter of Fundamental Rights in the exercise of their tasks. That the Commission and ECB were in time answerable to international organisations set up to provide financial support adds an additional layer of responsibility to consider. Taking Greece as a case study and drawing on EU law...

Immunity, individuals and international law: which individuals are immune from the jurisdiction of national courts under international law?

Franey, Elizabeth Helen
Fonte: London School of Economics and Political Science Thesis Publicador: London School of Economics and Political Science Thesis
Tipo: Thesis; NonPeerReviewed Formato: application/pdf
Publicado em /06/2009 Português
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State immunity under international law extends to protect some individuals from criminal prosecution before national courts. This thesis aims to identify which individuals are immune from prosecution before the English courts, for what conduct, and for what period. The justifications for immunity are examined, and the extent of immunity ratione personae and immunity ratione materiae are explored. This thesis argues that immunity ratione personae is only narrowly available to high state officials, and that the immunity accorded, by consent, to special missions is sufficient to cover other official visits. In Pinochet (No 3) all seven judges agreed: 1. An ex-head of state is immune from prosecution for murder and conspiracy to murder alleged to have been committed in the forum state. 2. All state officials no matter how minor are entitled to continuing immunity This thesis analyses state practice in arresting or prosecuting foreign state officials, and argues that both of these statements are incorrect. This thesis argues that immunity does not attach to conduct alone, for a person to have continuing immunity ratione materiae they must have had immunity ratione personae. The forum state must have agreed to the official being present on its territory...

The United Nations, the African Union and the rule of law in Southern Sudan

Majinge, Charles Riziki
Fonte: London School of Economics and Political Science Thesis Publicador: London School of Economics and Political Science Thesis
Tipo: Thesis; NonPeerReviewed Formato: application/pdf
Publicado em /04/2013 Português
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The argument of this thesis is that measures taken by international bodies to establish the rule of law in postconflict situations are undertaken in the mistaken belief that they will automatically enhance conditions for the rule of law to flourish. In fact, examination of the situation in Southern Sudan demonstrates that there is a wide disconnection between the measures pursued and the outcome of the process. This study will therefore inquire into the different meanings attributed to the concept of the rule of law in order to establish what the concept signifies in the context of statebuilding, with a focus on Southern Sudan. How does the theoretical understanding of the rule of law correlate with the legal and institutional measures taken by international organizations such as the United Nations and the African Union to build the effectiveness of the state in Southern Sudan? The study will further address issues such as what kind of state institutions are envisaged by rule of law reforms, together with the historical and theoretical imperatives which orient and drive the rule of law building process in post-conflict situations. The research is envisaged as a contribution to the debate on how to make ‘rule of law work on the ground’. It is hoped that if practitioners and policy makers take into account the findings of this study...

Domestic analogy in proposals for world order, 1814-1945: the transfer of legal and political principles from the domestic to the international sphere in thought on international law and relations

Suganami, Hidemi
Fonte: London School of Economics and Political Science Thesis Publicador: London School of Economics and Political Science Thesis
Tipo: Thesis; NonPeerReviewed Formato: application/pdf
Publicado em //1986 Português
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The ways in which legal and political principles obtaining within states can profitably be transferred to the relations of states are among the contentious issues in the study of international relations, and the term 'domestic analogy' is used to refer to the argument which supports such transfer. The 'domestic analogy' is analogical reasoning according to which the conditions of order between states are similar to those of order within them, and therefore those institutions which sustain order within states should be transferred to the international system. However, despite the apparent division among writers on international relations between those who favour this analogy and those who are critical of it, no clear analysis has so far been made as to precisely what types of proposal should be treated as exemplifying reliance on this analogy. The first aim of this thesis is to clarify the range and types of proposal this analogy entails. The thesis then examines the role the domestic analogy played in ideas about world order in the period between 1814 and 1945. Particular attention is paid to the influence of changing circumstances in the domestic and international spheres upon the manner and the extent of the use of this analogy. In addition to the ideas of major writers on international law and relations...