The American Journal of International Law

Published by American Society of International Law
Print ISSN: 0002-9300
AIDS is truly an international phenomenon, with cases now reported on every continent. To combat the AIDS epidemic, the nations of the world may be reverting to a pattern of quarantine and restrictions on international travel. For example, on April 23, 1986, the Federal Register gave notice of a rule proposed by the Centers for Disease Control of the United States Public Health Service that, if enacted, will add AIDS to the list of seven diseases that provide grounds for exclusion of aliens. This action would allow the U.S. Department of State to deny visas and the Immigration and Naturalization Service to deny admission to aliens subject to medical examination (generally immigrants and refugees) who are found to have AIDS. Although seemingly innocuous, the proposed regulation was initially seen by gay rights groups as an instrument that could potentially be used to harass homosexuals and other high-risk groups seeking entry to the United States. The proposed regulation also contrasts with the U.S. Public Health Service’s domestic strategy for coping with AIDS, which emphasizes education rather than quarantine as the principal means of controlling the disease.
Book on law relating to activities of man in space covering liability, space communication, international organization, military implications, etc
The obligations of international trade law hinge upon the question of what constitute "like products". Trade disputes will often involve an examination of whether the products in question are in competition with one another. The most common term used for this test is to ask whether they are "like products" - that is to ask whether products are sufficiently similar for consumers to see them as substitutable - and thus whether they are subject to the rules of the WTO and GATT. The central thesis of this book is that despite the centrality of the principle of 'like products' to the WTO, it has not been consistently interpreted, and therefore the risk of discriminatory practice remains. The author, through analyzing legal and economic arguments, sets about defining the concept of 'like products' in such a way as to consistently give effect to WTO aims.
Any experienced lawyer knows that cases are most often won or lost on procedural grounds; yet procedural issues are often considered too technical for proper treatment in legal literature. In this extensively revised new edition of Palmeter and Mavroidis’ authoritative book on WTO dispute settlement, the authors discuss all WTO dispute settlement provisions and their interpretation in WTO jurisprudence. All the decisions of panels and the Appellate Body are discussed, from the inception of the WTO in 1995 until the end of May 2003. Although the book contains considerable technical expertise, it is at the same time written for accessibility to a wide readership. This volume - an essential tool for practitioners, diplomats and government lawyers - is a comprehensive study of compulsory third party adjudication in international law.
As conflict and cooperation among states turn to an ever greater extent on economic issues, this fully updated and expanded second edition presents a comprehensive exploration of the legal foundations of the international economy. It not only examines the current status of the law, but also explores the origins, political tensions and development of outcomes that are often difficult to comprehend. Lowenfeld examines the major elements of economic law in the international arena including the World Trade Organization and its antecedents; dumping, subsidies, and other devices that alter the market; the International Monetary System, including the collapse of the Bretton Woods system; the debt of developing countries; the law of foreign direct investment, including changing perceptions of the rights of host states and multinational enterprises; and economic sanctions. The book also contains chapters on competition law, environmental law, and new chapters on intellectual property and the various forms of arbitration; demonstrating how these subjects fit into the framework of international economic law. Professor Lowenfeld brings to his task a lifetime of practice and teaching experience to produce a book that will be of use to international lawyers and non-specialists alike.
Multinational Enterprises and the Law presents the only comprehensive, contemporary, and interdisciplinary account of the various techniques used to regulate multinational enterprises (MNEs) at the national, regional and multilateral levels. In addition it considers the effects of corporate self-regulation upon the development of the legal order in this area. Split into four parts the book firstly deals with the conceptual basis for MNE regulation, explaining the growth of MNEs, their business and legal forms, the relationship between them and the effects of a globalising economy and society upon the evolution of regulatory agendas in the field. Part II covers the main areas of economic regulation including the limits of national and regional jurisdiction over MNE activities, controls and liberalization of entry and establishment; tax and company, and competition law. Part III introduces the social dimension of MNE regulation covering labour rights, human rights, and environmental issues, and Part IV deals with the contribution of international law and organizations to MNE regulation and to the control of investment risks, covering the main provisions found in international investment agreements and their recent interpretation by international tribunals.
Given recent seismic upheavals in the world’s money markets, an updated edition of an authoritative, reliable textbook on the international law of foreign investment has rarely been so timely. Sornarajah’s classic text surveys how international law has developed to protect foreign investments by multinational actors and to control any misconduct on their part. It analyses treaty-based methods, examining the effectiveness of bilateral and regional investment treaties. It also considers the reverse flow of investments from emerging industrialising powers such as China and Brazil and explores the retreat from market oriented economics to regulatory controls. By offering thought-provoking analysis of not only the law, but related developments in economics and political sciences, Sornarajah gives immediacy and relevance to the discipline. This book is required reading for all postgraduate and undergraduate international law students specialising in the law of foreign investments.
This book outlines the principles behind the international law of foreign investment. The main focus is on the law governed by bilateral and multilateral investment treaties. It traces the purpose, context, and evolution of the clauses and provisions characteristic of contemporary investment treaties, and analyses the case law, interpreting the issues raised by standard clauses. Particular consideration is given to broad treaty-rules whose understanding in practice has mainly been shaped by their interpretation and application by international tribunals. In addition, the book introduces the dispute settlement mechanisms for enforcing investment law, outlining the operation of Investor vs State arbitration. Combining a systematic analytical study of the texts and principles underlying investment law with a jurisprudential analysis of the case law arising in international tribunals, this book offers an ideal introduction to the principles of international investment law and arbitration, for students or practitioners alike.
Pending the establishment of the African Court on Human and Peoples' Rights, the African Commission on Human and Peoples' Rights remains the only institutional body for the implementation of the rights guaranteed in the African Charter on Human and Peoples' Rights. The Assembly of Heads of State and Government of the Organization of African Unity (OAU), reconstituted as the African Union (AU), established the Commission in 1987, after the entry into force of the African Charter, in 1986, and pursuant to its Article 64 (1). The Commission was established, inter alia, “to promote human and peoples' rights and ensure their protection in Africa.” That is, besides “any other tasks which may be entrusted to it” by the Assembly, the Commission performs three primary functions: it promotes and protects human and peoples' rights and interprets the provisions of the Charter.
South Asia, one of the most populous and thirsty regions of the world, has had to deal with more than its fair share of international water-related problems in the second half of the century. The first major water-related problem, which concerned the river Indus between India and Pakistan, was resolved by these two states to their satisfaction and for good in the early 1960s. Thanks to the wisdom and far-sightedness of their political leaders and the constructive role of mediation and conciliation played by the World Bank, a treaty was concluded between India and Pakistan in 1960 on sharing the waters of the Indus. At the same time a dispute over the Ganges River between India and Bangladesh was brewing.
It wasn't so long ago that the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. These courts conformed to a policy of avoiding any application of foreign sources of law that would clash with the position of their domestic governments. But as this Article demonstrates, in recent years courts in several democracies have begun to show a change of heart, often engaging quite seriously in the interpretation and application of international law and heeding the constitutional jurisprudence of other national courts. The Article explains this emerging jurisprudence as part of a reaction to the forces of globalization that are placing increasing pressure on governments, legislatures and courts to conform to global standards. The courts seek to expand the space for domestic deliberation and to strengthen the ability of national governments to withstand the pressure brought to bear by interest groups and powerful foreign governments. For this strategy to succeed, courts need to forge a united judicial front. This entails coordinating their policies with equally positioned courts in other countries, through the common language of international law and comparative constitutional law. The analysis also explains why the U.S. Supreme Court, which so far was not required to protect domestic political process from external pressures, is still not a part of this collective effort. Finally, and based on this insight into the driving force behind reliance on foreign law, the Article asserts that recourse to these sources is perfectly legitimate from a democratic theory perspective, as it aims to reclaim democracy from the debilitating grip of globalization.
Asymposium that attempts to apply behavioral science to the solution of the world's most critical problem. Harvard Book List (edited) 1964 #443 (PsycINFO Database Record (c) 2012 APA, all rights reserved)
The approach that the Court of Justice of the European Communities (ECJ) has taken to the standing of private parties seeking to bring actions for annulment of European Community (EC) measures in the Community courts (the ECJ and the Court of First Instance (CFI)) has been one of the most widely debated and criticized areas of EC law. In Jégo-Quéré v. Commission of the European Communities (Commission), the CFI was required to rule on the admissibility of an action brought by an individual applicant against a Commission regulation. In a bold move the CFI fundamentally changed the requirements for the admissibility of actions brought by natural or legal persons against EC legislation in the Community courts. The new rules did not, however, survive the appeal to the ECJ. In Commission of the European Communities v. Jégo-Quéré & Cie SA, the Court reaffirmed its long-established test for the standing of private applicants. This article discusses both decisions and comments critically on the ECJ's unnecessarily restrictive approach to locus standi for private parties.
Opinion 1/08 of the Grand Chamber of the European Court of Justice (ECJ) resolves a dispute between the European Commission, supported by the European Parliament, on the one hand, and the Council of the European Union (Council) and fifteen member states, on the other, as to the competence of the European Community (EC) to conclude -- with certain members of the World Trade Organization (WTO) -- particular agreements (Agreements) modifying the schedules of specific commitments (Schedules) of the EC and its member states under the General Agreement on Trade in Services (GATS). More importantly, by interpreting for the first time some of the provisions defining the common commercial policy (CCP) as they were recast by the Nice Treaty in 2001, this opinion clarifies the scope of the external powers of the EC vis-à-vis its member states. The Court held in essence that the Agreements -- although concerning neither exclusively nor predominantly sensitive sectors, such as culture, education, as well as social and human health services -- fall within the shared competence of the EC and its member states. Interestingly enough, the opinion was rendered on November 3'8 2009, on the eve of the entry into force of the Lisbon Treaty, which, inter alia, modified once more the CCP provisions. Yet, this opinion remains relevant to the extent that it helped to resolve another dispute pending before the ECJ on whether the approval of Vietnam's membership in the WTO fell solely under the competence of the EC or whether it also required the participation of the member states.
This article explores the challenge for the jus ad bellum posed by “irresponsible sovereigns” such as weak states that are either unwilling or unable to control their territory effectively and thus become safe havens for terrorists and other irregular groups. Reviewing state practice post-9/11, the article concludes that the notion that sovereignty implies responsibility for effective territorial control has been used to support a more expansive interpretation of the right to self-defense in response to irregular warfare.
On February 4,2008, shortly before Kosovo's controversial unilateral secession from Serbia on February 17 of that year, the Council of the European Union (EU) adopted a Joint Action creating the European Union Rule of Law Mission in Kosovo/EULEX (hereinafter EULEX), the largest and most important mission thus far undertaken within the common European foreign and defense policy. Although EULEX is first and foremost a European undertaking, it is also strongly backed by the United States, which agreed to shoulder 25 percent of the operating costs while the remaining costs would be shared by European and other states. In October 2008, the U.S. Department of State further agreed to provide EULEX with eighty police officers and up to eight judges and prosecutors.
European Court of Justice decision on judicial review of consistency of Community acts with WTO agreements.
A. Racke GMBH & Co. v. Hauptzollamt Mainz. Case C-l 62/96. Court of Justice of the European Communities, June 16, 1998. The German Bundesfinanzhof (Federal Finance Court) asked the Court of Justice of the European Communities whether an EEC Council regulation suspending the trade concessions provided for by the 1980 Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia was valid. The Court answered in the affirmative, holding that, in adopting the regulation, the Council had not acted contrary to the rules of customary international law concerning termination and suspension of treaty relations because of a fundamental change of circumstances.
Decision by European Community Court of First Instance on Community liability for commercial losses occasioned by embargo against Iraq.
Genèsse de la Convention -- Champ d'application géographique de la convention -- champ d'application matériel -- Compétence judiciaire internationale -- Mise en jeu des règles de compétence -- Dispositions générales de la Convention concernant le domicile des personnes physiques et le siège des personnes morales -- Effets des jugements rendus dans la communauté reconnaissance et exécution mutuelles -- Problèmes d'application de la Convention Pertenece al fondo donado por D. Félix Mansilla
European Court of Justice decision regarding effect on biotechnology directive of European Patent Convention, TRIPS & TBT Agreements, and Biodiversity Convention
Jose Alverez's recent book, The Public International Law Regime Governing International Investment, places international investment law firmly within the rubric of public international law. Historically, international investment law might have been classified as pure private international law given the private commercial actors and investment activities involved. Alvarez posits that a dichotomous public versus private law paradigm does not work in the context of international investment and makes the implicit explicit by considering investment law’s unique, arguably sui generis, hybrid essence that crosses the public and private international law divides. This book review explores Alvarez's primary thesis and his extended exposition on the U.S. Bilateral Investment Treaty program and the Argentine investment treaty disputes. To consider Alvarez's focus on Argentina and contextualize the larger investment arbitration universe, the review provides updated empirical data (current to 2009) about amounts claimed and awarded both for the body of final awards and the sub-set of awards where investors won. It then considers the Top 16 (T16) largest awards and introduces three different narratives to consider whether Argentina's experience is representative of the larger whole of investment treaty arbitration. The review concludes by observing that Alverez's core thesis, that the international investment regime is a complex one that can only be understood by appreciating the intersection of public and private law, is both sound and constructive.
European Court of justice opinion on interpretation and application of TRIPS agreement within the European Community.
The international law community has heavily criticized the United States’ handling of the Breard case. These criticisms are understandable. Perhaps because of the rush of time, the explanations by the Department of Justice and the Supreme Court for failing to stop Breard’s execution brushed over important issues of domestic and international law. In addition, Virginia’s decision to proceed with the execution, and the federal Government’s decision not to block it, may have reflected insufficient respect for international law and institutions. These decisions may also adversely affect U.S. relations with other nations and weaken consular protection of U.S. citizens abroad. These criticisms, however, tell only part of the story. In particular, they do not consider countervailing considerations grounded in the Constitution’s allocation of authority between the federal and state governments.
Necessity, necessità, is Machiavelli’s guiding principle . . . that infringing the moral law is justified when it is necessary. Thus is inaugurated the dualism of modern political culture, which simultaneously upholds absolute and relative standards of value. The modern state appeals to morality, to religion, and to natural law as the ideological foundation for its existence. At the same time it is prepared to infringe any or all of these in the interest of self-preservation. —J. M. Coetzee Recent jurisprudence in investment arbitration, almost all of which originated in disputes arising out of Argentina’s turn-of-the-century fiscal crisis, has raised difficult questions about the existence, nature, and advisability of necessity as a defense to state responsibility. The jurisprudence has contributed to a sophisticated literature focusing on necessity’s role in the special context of investment arbitration. But the growing prominence of necessity pleas in international law has not been so limited. Nor will its effects be. In the first place, investor-state arbitral jurisprudence contributes to the evolution of general international law. Investment tribunals invoke the latter, for example, to inform their interpretation of bilateral investment treaties (BITs) or to cure lacunae in the law. More significantly, beyond the realm of investment arbitration, the past few decades have seen a striking growth in necessity pleas in fields ranging widely across the landscape of international law.
Thesis--Geneva. At head of title; Université de Genève. Faculté de droit.
This article examines the dispute resolution process embodied in NAFTA's Side Agreements as a modality in international trade law for reconciling trade values with social and environmental values. It explores the political considerations underlying the Side Agreement dispute resolution process, and notes particularly the provision for consultations between the parties, and for mediation before, during and after arbitration, that allows a many-layered opportunity to modify behavior and avoid the imposition of sanctions. The article also assesses the Side Agreements' capacity for promotion of the trade values of predictability and reliability, and their responsiveness to quality-of-life concerns. It concludes that the Side Agreements constitute a profound disjunction with the past regime of the law of international trade, in particular the GATT, and that the Side Agreements, by incorporating goals other than trade liberalization, can be a model for international trade agreement dispute resolution.
This empirical study, based on personal interviews, draws on insights from organizational theory to consider how military lawyers embedded with troops can help produce battlefield decisions that comply with international legal norms. These lawyers appear to be most likely to function effectively and encourage legal compliance if certain organizational features are present. Accordingly, focusing on the links between organizational structure, institutional culture, and legal compliance through more nuanced qualitative analysis should contribute to a better understanding of international law compliance.
Hovering over the peace negotiations in progress in former Yugoslavia is the international community’s determination to bring to trial as war criminals those political and military leaders responsible for atrocities in Bosnia. The question clearly presented is that, however desirable the idea of war crimes accountability might appear in the abstract, pursuing the goal of a war crimes tribunal may simply result in prolonging a war of civilian atrocities. Is it not conceivable that, in return for securing a peace treaty, the UN officials may have extended some assurance to the leaders in former Yugoslavia that, one way or another, war crimes trials will not take place?
The concept of sovereignty crystallized at a time when distances were large and self-sufficiency was the aspiration. Sovereignty coincided with notions of democracy, under the assumption of a perfect fit between the scope of sovereign authority and the affected stakeholders. This traditional view of sovereignty yields inefficient, inequitable and undemocratic consequences. This Article argues that in a densely populated and deeply integrated world, sovereignty should be conceptualized as a trusteeship not only toward a state’s own citizens, but also toward humanity at large. Accordingly, sovereigns should be required to take into account other-regarding considerations when forming national policies that may have effects beyond their national jurisdiction, even absent specific treaty obligations. After grounding the trustee sovereignty concept on three distinct bases – the right to democratic participation, human rights, and the sovereign’s power of exclusion – the Article identifies the minimal normative and procedural other-regarding obligations that arise from this concept and suggests that they are already embedded in several doctrines of international law that delimit the rights of sovereigns. The trustee sovereignty concept can explain the evolution of these doctrines and inspire the advent of new specific obligations.
This review essay, forthcoming in the American Journal of International Law, considers Robert Beisner's recent magisterial biography of Dean Acheson. I ask what Acheson's diplomatic record tells us about the nature of world politics, and consider the question in light of international relations theory and international legal thought. I argue that Achesonian diplomacy demonstrates the interrelatedness of the four major paradigms of international relations theory - realism, institutionalism, liberalism, and constructivism. Each theory explains a crucial part of the impact of Acheson's record, but none can explain it by themselves. I suggest in conclusion that while the Cold War might have begun with or without Acheson, his diplomatic leadership helped ensure that it ended as soon as it did - even though he was gone by the time it occurred.
The Hague Conferences that produced the Conventions of 1899 and 1907 closed the nineteenth century and opened the twentieth. They established an agenda for negotiation, in the parliamentary-diplomatic mode, for the next hundred years; elevated the development of mechanisms of dispute resolution to new prominence; tried to order many areas of armed conflict with new international law; and, perhaps unintentionally, set parameters for the future diplomacy of international conferences. Subsequent international lawmaking efforts grappled with many of the themes debated at The Hague, even as the political landscape of international law was completely transformed by the breakup of empires and the advent of almost two hundred new states; the founding of international organizations and regional organizations that could scarcely have been imagined in 1899, and the establishment of a truly permanent international judicial institution, followed by the creation of many other judicial institutions with more focused jurisdictions. Despite these changes, much of the style of the Hague Conferences left a deep imprint on international law. The mixture of lofty rhetoric, prophetic international legal vision, and narrow political interest of the Hague Conferences became a characteristic, even an expected feature, of collective international lawmaking efforts in this century.
This essay considers the constitutionality of both the habeas corpus and Geneva Convention provisions in the Military Commissions Act of 2006 (MCA). The MCA purports to preclude federal court jurisdiction over habeas corpus applications filed by detainees in the war on terrorism, providing them instead with D.C. Circuit review of their status determinations and military commission judgments. The MCA also has a number of provisions that either restrict judicial application of the Geneva Conventions or purport to interpret those Conventions. With respect to the habeas restriction, the essay concludes that the Supreme Court is likely to find that the detainees at the Guantánamo Bay naval base have a constitutional right of habeas corpus review, and that this right has not been validly suspended by the MCA. Nevertheless, depending on how they are interpreted, the provisions allowing for D.C. Circuit review could suffice to preserve the constitutional right. With respect to the MCA’s Geneva Convention provisions, the essay concludes that Congress has the authority to decide that the United States will implement the Conventions through military regulations, congressional oversight of the military, criminal law, and diplomatic relations rather than through private judicial enforcement, and that a fair reading of its intent in enacting the MCA is that it has exercised this authority. In addition, while the provisions in the MCA that set forth particular interpretations of the Geneva Conventions are unlikely to be treated by courts as dispositive, the essay concludes that courts should give substantial deference to Congress’s and the Executive’s shared interpretation of the Conventions.
Thèse--Lausanne. "Convention relative aux infractions et a certains autres actes survenant à bord des aéronefs": p. 215-224. "Convention pour la reṕression de la capture illicite d'aéronefs": p. 225-230. Bibliography: p. 231-236.
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