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The European Commission of the Danube, 1856-1948

An Experiment in International Administration

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Constantin Ardeleanu

In The European Commission of the Danube, 1856-1948 Constantin Ardeleanu offers a history of the world’s second international organisation, an innovative techno-political institution established by Europe’s Concert of Powers to remove insecurity from the Lower Danube. Delegates of rival empires worked together to ‘correct’ a vital European transportation infrastructure, and to complete difficult hydraulic works they gradually transformed the Commission into an actor of regional and international politics. As an autonomous and independent organ, it employed a complex transnational bureaucracy and regulated shipping along the Danube through a comprehensive set of internationally accepted rules and procedures. The Commission is portrayed as an effective experimental organisation, taken as a model for further cooperation in the international system.

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Edited by Katie Laatikainen and Karen Smith

Group Politics in UN Multilateralism provides a new perspective on diplomacy and negotiations at the United Nations. Very few states ‘act individually’ at the UN; instead they often work within groups such as the Africa Group, the European Union or the Arab League. States use groups to put forward principled positions in an attempt to influence a wider audience and thus legitimize desired outcomes. Yet the volume also shows that groups are not static: new groups emerge in multilateral negotiations on issues such as climate, security and human rights. At any given moment, UN multilateralism is shaped by long-standing group dynamics as well as shifting, ad-hoc groupings. These intergroup dynamics are key to understanding diplomatic practice at the UN.

Edited by Bardo Fassbender

“Key Documents on the Reform of the UN Security Council 1991-2019” brings together primary source documents reflecting the political, legal and academic discussions of the United Nations Security Council reform, in particular the Council’s membership and decision-making, as they have taken place since 1991. Earlier discussions from the late 1940s through 1991 are covered insofar as they offer a useful contribution to the current debate. This extensive collection, curated by a leading authority, is intended to be representative of the debate as a whole without bias, faithfully reflecting the positions of various stakeholders, global participants and civil society. This important work will be an indispensable resource for researchers and students, bringing together hundreds of documents produced during more than three decades by governments, UN bodies, universities, think tanks and individual authors in a single, comprehensive volume.

Science, (Anti-)Communism and Diplomacy

The Pugwash Conferences on Science and World Affairs in the Early Cold War

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Edited by Alison Kraft and Carola Sachse

From 1957 onwards, the "Pugwash Conferences" brought together elite scientists from across ideological and political divides to work towards disarmament. Through a series of national case studies - Austria, China, Czechoslovakia, East and West Germany, the US and USSR – this volume offers a critical reassessment of the development and work of “Pugwash” nationally, internationally, and as a transnational forum for Track II diplomacy. This major new collection reveals the difficulties that Pugwash scientists encountered as they sought to reach across the blocs, create a channel for East-West dialogue and realize the project’s founding aim of influencing state actors. Uniquely, the book affords a sense of the contingent and contested process by which the network-like organization took shape around the conferences.

Contributors are Gordon Barrett, Matthew Evangelista, Silke Fengler, Alison Kraft, Fabian Lüscher, Doubravka Olšáková, Geoffrey Roberts, Paul Rubinson, and Carola Sachse.

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Edited by Nico J. Schrijver and Niels M. Blokker

Conventional wisdom has it that the successful functioning of the UN Security Council almost completely depends on the role played by its five permanent members and the extent to which they can agree—or avoid to fundamentally disagree—on the many issues on the Council’s agenda. But the Council also consists of ten non-permanent or elected members who represent five different regions of the world, and who, though not vested with the right of veto, play an indispensable role in Council decision-making.

This book aims to take a closer look at that role. It considers what role is foreseen for the elected members in the UN Charter, how this evolved in practice, what “tools” they can deploy. It also considers whether there are particular “niches” for the elected members on the Security Council, such as engaging in conflict prevention, taking initiatives on rule of law issues and debating the potential effects of climate change on peace and security. Can elected members serve as agents of the international community and norm entrepreneurs? Should their position be strengthened, and if so, how? This collection was born out of a dynamic research seminar held at Leiden University, which also drew on the experiences of former elected members. This book thus offers unique insights from both practice and scholarship, and is an indispensable tool for politicians, diplomats, academics and students alike.

General Principles of Law Recognized by Civilized Nations (1922-2018)

The Evolution of the Third Source of International Law Through the Jurisprudence of the Permanent Court of International Justice and the International Court of Justice

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Marija Đorđeska

In General Principles of Law Recognized by Civilized Nations (1922-2018) Marija Đorđeska offers an account of the origins, theory and practical application of the general principles in the jurisprudence of the Permanent Court of International Justice and International Court of Justice between 1922 and 2018. Are general principles rules of international law? What is their relationship to custom and treaties? What are the types of general principles and where do international courts find them? This monograph answers these and other questions and offers a detailed overview of over 150 general principles identified in the jurisprudence of the Permanent Court of International Justice and the International Court of Justice.

Edited by Md. Jahid Hossain Bhuiyan and Borhan Uddin Khan

The book is designed to provide an overview of the development, meaning, and nature of international humanitarian law (IHL). It presents a critical review of the protection of the injured, sick and shipwrecked, prisoners of war (POWs) and civilians during times of war, the prevention of forcible transfer of civilians, the four Geneva Conventions from a Third World point of view, the ideals of distinction, proportionality and precaution from the point of view of Islamic law and the issues faced in implementing IHL.

This lucidly written and timely book will greatly benefit anyone interested in the protection of victims of armed conflict.

Contents:
Notes on editors; Notes on contributors; List of acronyms and abbreviations; Preface; Foreword;
International Legal Protection of Persons Affected by War: Challenges and the Way Forward, Md Jahid Hossain Bhuiyan and Borhan Uddin Khan
1 The Development of the Geneva Conventions, Borhan Uddin Khan and Nazmuzzaman Bhuian
2 The Legal Status and Protection of the Rights of Prisoners of War, Md Jahid Hossain Bhuiyan
3 The Prohibition of Deportation and Forcible Transfer of Civilian Populations in the Fourth Geneva Convention and Beyond, Etienne Henry
4 Combatants Aboard Medical Aircraft Who Fall into the Hands of a Neutral Power – the Scope of Their Liability to Detention Under the 1949 Geneva Conventions and the 1977 Additional Protocol I, Yutaka Arai-Takahashi
5 Forced Transfer of Aliens during Armed Conflicts, Pablo Antonio Fernández Sánchez
6 The Geneva Conventions and Non-International Armed Conflicts, Noelle Higgins
7 Four Geneva Conventions of 1949: A Third World View, Srinivas Burra
8 Criminalising Rape and Sexual Violence in Armed Conflicts: Evolving Criminality and Culpability from the Geneva Conventions to the Bangladesh International Crimes Trial, M Rafiqul Islam
9 Principles of Distinction, Proportionality and Precautions under the Geneva Conventions: The Perspective of Islamic Law, Mohd Hisham Mohd Kamal
10 Implementation of International Humanitarian Law and the Current Challenges, Borhan Uddin Khan and Nakib Muhammad Nasrullah
11 The Geneva Conventions and Enforcement of International Humanitarian Law, Derek Jinks
Index.

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Edited by Council of Europe

The European Yearbook promotes the scientific study of nineteen European supranational organisations and the Organisation for Economic Co-operation and Development (OECD). Each volume contains a detailed survey of the history, structure and yearly activities of each organisation and an up-to-date chart providing a clear overview of the member states of each organisation. Each volume contains a comprehensive bibliography covering the year’s relevant publications.

Yearbook of International Organizations 2019-2020, Volume 6

Global Civil Society and the United Nations Sustainable Development Goals

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Edited by Union of International Associations

In 2015 the United Nations adopted a set of seventeen goals “to end poverty, protect the planet and ensure prosperity for all”, with specific targets for each goal to be achieved by 2030. These are the Sustainable Development Goals [SDGs] of the United Nations, or "Transforming our World: the 2030 Agenda for Sustainable Development". The UN calls on governments, the private sector, individuals and civil society bodies to join together to achieve these goals.

This volume groups international organizations by the seventeen UN Sustainable Development Goals, indicating which organizations are – or could be – concerned with which SDGs. It can also be used as an index to descriptions in Volume 1. Each organization is listed with its complete address.

Beyond a Seat at the Table

Participation and Influence in Global Governance

Henrique Choer Moraes

Abstract

Debates on the legitimacy of global governance pay remarkably little attention to whether and how developing countries can influence global governance. Instead, the focus lies significantly on addressing legitimacy challenges such as access and exclusion in global governance. Despite their merits, these debates often stop short of addressing a crucial question: How can weak states harness increased participation in global governance if they are ill-equipped to do so? To respond to this question, this article lays down a framework of mechanisms that might induce more influence by developing countries. The article makes two claims. First, we should understand influence as the combination of two skills: translation of global governance and empowerment to defend the interests of a country at global decision-making processes. Second, increased influence by developing countries must be stimulated by leveraging both domestic capacities (actor-level mechanisms of influence) and resources available at the international system (system-level mechanisms).

Karim Makdisi and Coralie Pison Hindawi

Abstract

After reviewing recent literature on international organizations’ autonomy and cooperation, this article explores the unprecedented partnership between the Organization for the Prohibition of Chemical Weapons—implementing body for the Chemical Weapons Convention—and the UN Secretariat during the 2013–2014 chemical weapons disarmament in Syria. The article explores how this collaboration, embodied on the ground through the creation of a Joint Mission, evolved from hesitant, bureaucratic rivalry to an increasingly intense relationship in the aftermath of a large-scale attack near Damascus in August 2013. The research is based on wide-ranging interviews with senior OPCW and UN staff, and relevant state officials. The article shows how international shocks, high-level support from key Member States, and leadership at the Secretariat level produced requisite intra- and interorganizational consensus to mitigate turf wars. Relative autonomy of mission staff and bureaucratic flexibility further allowed skilled boundary spanners to build trust and increase the mission’s leeway, allowing it to navigate complex political challenges.

Providing for Global Security

Implications of China’s Combat Troop Deployment to UN Peacekeeping

Courtney J. Fung

Abstract

A fundamental question facing global governance today is whether the UN peacekeeping regime can function with enough skilled troops to execute increasingly demanding and complicated mandates. The People’s Republic of China is informally thought of as a potential lead troop-contributing country. China typically deploys non-combat enabler troops, and recently began deploying combat troops, which may have to engage in live fire to defend the mandate. The risks and costs associated with dispatching combat troops challenge the benefits that China derives from supporting peacekeeping. I first establish China’s feedback mechanisms to facilitate simple and complex learning against China’s peacekeeping trajectory and motivations for participation. I then address the implications of China’s combat troop deployment, focusing on the UN Multidimensional Stabilization Mission in Mali and the UN Mission in South Sudan. The article draws insights from interviews with Chinese foreign policy elites and UN officials, and participant observation at the UN Department of Peacekeeping Operations.

Shaping the Evolution of Regime Complex

The Case of Multiactor Punctuated Equilibrium in Governing Human Genetic Data

Hanzhi Yu and Lan Xue

Abstract

Regime complex has been widely recognized in many governance issues, but the evolutionary dynamics in regime complex are largely overlooked. This article explores the evolutionary dynamics by conducting a case study on the regime complex for human genetic data, which has evolved as an alternation between stable and unstable periods, known as punctuated equilibrium. Given that existing theories fail to explain the evolutionary pattern, a multiactor analysis framework is set up with the core argument that the evolution of regime complex is shaped by interactions between governance issues outside the regime complex, and a combination of actor power and institutional logics within them. Besides its specific contribution to the literature on regime complex, this article has general implications for research in global governance.

Unintended Consequences of Adjacency Claims

The Function and Dysfunction of Analogies between Refugee Protection and IDP Protection in the Work of UNHCR

Miriam Bradley

Abstract

This article examines the role of adjacency claims in the development of a norm for the international protection of internally displaced persons (IDP s). Consistent with existing scholarship on adjacency claims, the construction of analogies between refugee protection and IDP protection was instrumental in garnering broad international acceptance of the IDP protection norm. However, these same analogies had an impact beyond the abstract acceptance of the norm. They were used to justify the expansion of the mandate of the UN Refugee Agency (UNHCR) to encompass IDP s, and they shaped the way UNHCR understands and implements IDP protection. UNHCR replicated its policy approach from refugees to IDP s, generating a dysfunctional approach to IDP protection. Therefore, adjacency claims can have an effect beyond garnering support for new norms, and may result in suboptimal governance arrangements for implementing those norms.

Thomas G. Weiss, David P. Forsythe and Roger A. Coate

Who Does Greenpeace India Represent?

Placing Effective Limits on the Power of INGO s

Erla Thrandardottir and Susanna G. Mitra

Abstract

The global governance literature is increasingly concerned with questions regarding the purpose of global governance and the sources of power in world politics. One strand of this debate centers on nongovernmental organizations and to what extent their role in global politics and policy processes is legitimate. This article uses Greenpeace India as an instructive case study to analyze the legitimacy problems facing international nongovernmental organizations (INGO s) campaigning on a global policy platform in the context of domestic politics. The article argues that the undertheorization of INGO s’ agency as global actors is likely to reproduce processes of structural delegitimation that maintain a discrepancy between two of their legitimacy constructs. This is exemplified in questions about their representativeness and restrictive regulatory frameworks that undermine their legality. This article proposes that developing a more nuanced empirical understanding of the endogenous and exogenous limits of INGO s’ power can help bridge the theoretical gap between their global and local agencies.

Neil B. Nucup

Abstract

With the anarchic multiplication of international courts and tribunals, and the concomitant possibility for jurisdictional and decisional conflicts among them to occur, treating the International Court of Justice as the “invisible” international supreme court seems an attractive solution. After all, it is the principal judicial organ of the United Nations and the only court with universal general jurisdiction. Revisiting this proposal, the article argues that the World Court suffers not only from political (extrinsic) constraints, but also from institutional (intrinsic) limitations, thereby endangering its sociological and normative legitimacy. Nonetheless, this does not mean rectifying them for the purpose of enabling it to discharge its envisioned role as the international supreme court. Rather the problem is not so much improving the World Court, but understanding the merits of maintaining the status quo, that is, a decentralised judiciary.

Ksenia Polonskaya

Abstract

This article examines the notion of consent as an element of judicial propriety as defined by the International Court of Justice (ICJ) in the context of its advisory function. The article situates the issue of judicial propriety within a broader conversation on the Court’s normative outlooks in international law, and examines the most recent advisory opinion on the Chagos Archipelago to understand how the Court itself views its role in international law. The article concludes that the Court’s advisory opinions do not provide much clarity as to the circumstances in which a lack of consent will become a compelling enough reason to justify a refusal to give an advisory opinion. The Court appears to ritually recite consent as a relevant element in its assessment of judicial propriety, however, it continues to limit such relevance.

Paula Wojcikiewicz Almeida

Abstract

By adjudicating inter-State claims, international courts can also contribute to the protection and promotion of community interests. However, the main obstacle faced by the International Court of Justice (ICJ) relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law. As procedure may guide and shape the application of substantive law, it should itself be interpreted and developed in a manner to ensure community interests. By using its power to “frame rules for carrying out its functions”, the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever community interests are at issue. Most procedural rules can be adjusted for multiparty aspects, notably the rules on third-party intervention, with the aim of protecting community interests and enhancing the Court’s legitimacy. It is up to the Court to find the balance between States’ rights and commonly aspired goals.

Gaiane Nuridzhanian

Abstract

Article 20(3) of the Rome Statute bars the International Criminal Court from trying a person for conduct proscribed by the Statute if the person has already been tried in relation to the same conduct before “another court,” provided that the proceedings in the other court were genuine. The article discusses application of Article 20(3) of the Rome Statute and, by implication, of the Court’s admissibility framework to non-State courts. It argues that Article 20(3) applies where there has a been a trial before a court of a State, whether that State is a party or not to the Rome Statute. Article 20(3) can in principle apply to a trial before a non-State court were the trial to satisfy the customary international law rules on attribution of conduct to a State.

Ciarán Burke and Alexandra Molitorisová

Abstract

The article offers a critical look at the complex relationship between the European Court of Human Rights (ECtHR) and policy-supportive (scientific) evidence. In particular, due to now commonplace, evidence-based policy-making of national governments, the Court is effectively supplemented with various statistics and studies and tasked with reviewing policy measures aiming to improve the public good. This article investigates the ECtHR’s use and interpretation of policy-supportive evidence in the proportionality analysis, and how this affects the margin of appreciation. The recent case of Dubská and Krejzová concerning the ban on home births, which the article explores in detail, is illustrative in this regard. Although the Court appears to review scientific evidence substantively, an increased proliferation of statistics and studies may bring about controversy in relation to legal cases, without having a conclusive impact upon the outcome of a dispute.

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Bertrand G. Ramcharan

The universal protection of human rights remains the core challenge of the United Nations if it is to achieve its mission of a world of peace, development and justice. Yet, at a time of seismic changes in the world, when shocking violations of human rights are taking place world-wide, the UN human rights system is in need of urgent modernization. This book, written by a foremost scholar-practitioner who previously exercised the functions of UN High Commissioner for Human Rights, advances a series of ideas to modernize the UN protection system. Among a dozen key proposals are that the UN human rights system should help alleviate the plight of the poorest, pay greater attention to the national protection system of each country, and establish a World Court on Human Rights that can deal with countries which grievously violate human rights. Unlike other texts that have focused on those topics, this book not only provides comprehensive analysis but, crucially, offers practical and workable solutions based on the author's significant expertise and experience. Scholars, practitioners, and students of international human rights will benefit immensely from its analysis, insights, perspectives, and proposals. It is a salutary contribution on the 75th anniversary of the UN (2020).

Wenhui Xu, Wenqi Dong and Min Cai

Abstract

With the idea of governance spreading, governance thinking has also begun being applied in the field of project management, giving rise to an emerging theory of project governance. The nature of charitable organizations and their disadvantage in resource mobilization make it necessary also to apply the idea and analysis framework of governance to project operations and move from project management to project governance. This article will illustrate, through an analysis of the “Aid De facto Orphans” Project that the Changsha City Yuelu District Boundless Love Commonwealth Culture Promotion Association (DAWJ) has launched, that a charitable organization in its process of project governance must also hold fast to its mission and, on the basis of the mission, set objectives of project governance, select partners, build governance mechanisms and control governance performance.

Xue Zhang and Tian Gan

Abstract

NGOs are faced with the dilemma of action logic in participating in poverty alleviation at the grass-roots level: if they do not embed into local areas, they cannot carry out activities; if they embed too deeply, they will be molded in reverse and cannot realize successful exits. So what action logic will NGOs take in the process of poverty alleviation? Through field observation of H organization which participated in the poverty alleviation project of a pig farm in J village, this paper puts forward the action logic of “soft embeddedness” (SE) on the basis of the theory of “embeddedness” and “soft governance.” SE mainly includes three aspects: the soft relationship embeddedness of culture and custom, the soft resources embeddedness of negotiation by many parties and the soft structure embeddedness of rural regulations and folk conventions. Compared with that of “hard embeddedness” (HE) which emphasizes institutionalism and inculcation, the action logic of SE has its own characteristics. It includes the flexibility of interaction, the strategy of participation and the limited responsibility boundary. The SE action logic helps maintain the autonomy of NGOs, promote the accumulation of village social capital and realize the sustainable development of poverty alleviation projects. At the same time, this paper theoretically complements and extends the interaction between the states and the society as well as the action logic of NGOs in China.

Wenen Luo and Ying Huang

Abstract

Social enterprises (SE) certification is a process of labeling SE and distinguishing them from other types of organizations. This article centers on the SE certification practices in China’s Mainland, Hong Kong and Taiwan, analyzes their development conditions and compares them in the three areas. The research has found that there are many similarities in certification organizers, essential criteria, SE qualifications, government role, the application of certification results in such areas. Meanwhile, evident differences have also been found, which can be explained from the institutional contexts within which social enterprises grow and the maturity of non-profit sectors in these regions. Through the analysis of SE certification practice in the three areas, this article points out that SE certification practice varies in different institutional contexts, but in general it helps social enterprises to construct a unique and distinct identity so as to better acquire support from the market, government and other entities. At the same time, we should be alert to the “fence effect” when endorsing social enterprises, and avoid setting fine-grained indicators which may bring damage to the diversified ecology of social entrepreneurship.

Chengcheng Song and Xiangcheng Wang

Abstract

Recent research about nonprofit rationalization (especially in China) tended to focus on “net” effect explained by a particular theory, and thereby ignored the combinatory effects of different mechanisms in specific environments. In this article, echoing from the configurational perspective, we used csQCA to explore the potential combination of different mechanisms that may shape the formation of nonprofit rationalization. Through the analysis of 14 cases from three cities of Zhejiang Province in Eastern China, we found that rationalization of a nonprofit requires its leaders/important members to have certain career experience when it receives the corporate giving; the results also indicate that rationalization requires leaders/important members to have corporate work experience when it receives corporate giving, despite the absence of government support and competition.

Xunyu Xiang and Yushan Xu

Abstract

This paper employed the multi-case study method to explore the interactions between nonprofit support organizations (NSOs): NPI and three practical nonprofit organizations (NPOs) (X, Y, Z), which is incubated by NPI. By applying the analytical framework of collaborative governance, this paper indicates that a well-developed interactive relationship exists between these two organizations, on basis of equality and voluntary. Meanwhile, they shared a mutual goal and maintain an effective interaction. Consequently, it stimulates the building of collaborative network among social organizations.

Childhood Research Beyond Children: Public Engagement and the Rights of the Child

A Book Review of Alan Prout’s The Future of Childhood – Towards the Interdisciplinary Study of Children

Chao Zhang and Jingyi Wang

Abstract

With the globalization of technology and the changes of society, the boundaries between childhood and adulthood have become increasingly blurred. Children’s studies begin to re-examine the modern thinking and the binary opposition in childhood research, and propose that in order to adapt to the diversity and continuous influence of childhood, childhood research must look for and effectively use non-dualistic theoretical analysis resources. On the one hand, “actor-network theory” and “complexity theory” have provided such research with a theoretical basis, transcending the perspective of binary opposition, focusing on the long-term effects of childhood on individual public character and the public participation of children. On the other hand, information media technology and community participation play an important role in the building of contemporary childhood, especially for the vulnerable groups of children to gain the ability of public participation and enter the public sector. Childhood research requires a broad theoretical perspective and an interdisciplinary approach. It also requires attention to the processes and mechanisms of how children’s participation influences the acquisition of individual public character. How to effectively use information technology to promote public participation, expand the existing public space and form an effective connection with practical community participation is the key to realizing a “good society” in the future for children.

Yiyang Zhuang

Abstract

As the increasing discussion over social stratification and mobility indicates, the idea of “education changes destiny” has progressively been brought into question. In his classic study of British working-class boys from 1975, which is widely read in the fields of sociology, anthropology, and education, Paul Willis uncompromisingly revealed that liberal ideology about equal opportunity was only an empty promise and, more importantly, how the counter-cultural cognition and expression adopted the constraints of the structural conditions and at the same time leads to the reproduction of them. Despite the tragic mechanism behind the contradictory counter-culture, Willis remained optimistic about the radical potential in the symbolic works against dominant discourse. His in-depth ethnographic description didn’t only contribute to the endless theoretical debate about Structure and Process, but also provided a methodological approach encouraging extensive fieldwork, in which he believed the “theoretical uncertainty” lies. Ethnography can really “become the intellectual education of those who are governed,” if the scholars are willing to understand and communicate with the informal cultural groups and believe that their fate can be changed.

Nandakumar Mekoth and Raina Pinto

Abstract

We conducted a study using an experimental approach and made a comparison of customers’ Willingness To Pay (WTP) during two time frames; one highlighting an event – Joy Of Giving Week (JOGW) and the other; post JOGW (Non-Joy Of Giving Week) not specifically linked to giving. When a time frame highlighting an event is used, it provides a stimulus to the customers which triggers a response in terms of higher WTP. We posit that a time frame highlighting an event can have an impact on customers’ WTP for a product linked to a cause. We present a new facet of Facilitated Giving Form of Cause Related Marketing (CRM).This form offers benefits to three entities: the Non-Governmental Organization (NGO) in terms of increased availability of funds, customers experience a ‘feel good factor’ by purchasing a product of the NGO associated with a cause and, builds the image of the business unit.

Weijun Lai and Huafang Ding

Abstract

The promulgation of Chinese Charity Law in March 2016 was expected to break the long-term monopoly of governmental charities in public fundraising in China. However, governments’ regulating practices on fundraising seem to be still quite ambivalent during the post-legislation era, indicating endogenous contradictions of the Charity Law. In order to explore the legislative logic of Chinese Charity Law on public fundraising regulation, this paper, employing an analytical framework of state-society relations, historically examines all relevant laws and policies of China that deal with the fundraising regulation issue since the reform and opening-up. It is revealed that a “control thinking” of the Chinese state towards civic fundraising has been dominating the field all the way, and that the recent loosening of state control was compelled by bottom-up social dynamics. The paper argues that, under the constant influence of state control thinking, the institutional adjustments of Chinese Charity Law on opening spaces for civic fundraising tend to be quite passive and endogenously contradictory, leading to both validity and limitations of the law in practice.

The Role of Practice in International Organizations

The Case of Government Recognition by the International Monetary Fund

Lorenzo Arditi

This article explores the ‘practice’ of the International Monetary Fund (‘imf’) by focusing on the organization’s approach to recognition of governments. After analysing this approach in some detail, it surveys the organization’s practice from three perspectives. First, it identifies the different functions of practice within the imf’s legal system, including the imf’s treaty. Second, the article reviews how the practice of the imf relates to key conceptions of practice under international law: (i) as part of international custom; (ii) under articles 31(3)(b) and 32 of the 1969 Vienna Convention on the Law of Treaties; and (iii) as a ‘rule of the organization’. Finally, the article compares ‘practice’ under the imf treaty and a national legal system by considering how the United States’ Supreme Court has interpreted the power to recognise governments under the USConstitution.

Alexander Orakhelashvili

This contribution examines the legal merit of the Decision Addressing the Treat from Chemical Weapons, adopted by the 89th Session of the General Conference of the Organization for the Prohibition of Chemical Weapons (‘opcw’) on 27 July 2018. While relating to matters of high political importance, this Decision still raises important issues of the constitutionality of international organizations’ use of their delegated powers. This contribution pursues the detail of this matter, by focusing, among others, on the scope of the opcw’s authority under the Chemical Weapons Convention and the relationship between the opcw and the United Nations.

Stacey Henderson

This paper analyses the overt provision of assistance to opposition groups in the contemporary conflicts in Libya and Syria. Applying an R2P lens to this new and emerging State practice, the paper argues that R2P has served as the inspiration for a re-aligned conceptualisation of the limits of State responses to atrocity crimes, charting a way forward for the international community which is at once sensitive to State sovereignty but also responsive to humanitarian imperatives.

Ramesh Thakur

R2P is the international community’s organising principle for responding to mass atrocity crimes. It reflected and contributed to the shift from power towards norms as the pivot on which history turns. The old, discredited and discarded ‘humanitarian intervention’ represents the national interest and power end of the intervention spectrum. R2P is an effort to insert the global justice and normative end and has much better prospects of a convergence of legality and legitimacy in the use of force. It will be easier to prevent unilateral use of force by great powers if their interventionist instincts are moderated by the discipline of multilateral norms. R2P has a secure future because it is demand-driven. On the realism side of the ledger, many leaders rule on the basis of brute force and occasionally will commit atrocities. On the normative side, the better angels of most people in many countries will demand effective and timely action by governments and the UN to halt the atrocities and punish the perpetrators. R2P is the answer to the challenge of global justice being done and being seen to be done, both by states as the primary units of the global order but also by peoples in whom sovereignty ultimately resides. And it does so by reconciling several inherent tensions between competing interests, competing values, and competing interests and values: between the UN Security Council and the General Assembly; between human and national security; between states and the international community; between institutionalised indifference and unilateral intervention; and between the global North and South.

Melinda Rankin

Arguably, more than any other state or interstate actor, German federal authorities, including the German Federal Public Prosecutor General (Generalbundesanwalt, gba) and German Federal Criminal Police Office (Bundeskriminalamt), have been at the forefront of issuing arrest warrants for senior members of the Syrian government suspected of atrocity crimes in the wake of the Arab Spring. This includes German federal authorities making the first arrest of a senior member of the Syrian government in February 2019 for crimes against humanity. This article argues that in relation to core international crimes, Germany’s concept of law reflects one based on a ‘standard’ and international rule of law. Moreover, German federal authorities have demonstrated a willingness to use international humanitarian and criminal law (ichl) in relation to those most responsible for core international crimes. In this way, Germany’s current investigations into alleged crimes against humanity in Syria since 2011 provides for an illuminating case for extending universal jurisdiction, as well as the ‘responsibility to prosecute’ as a legal obligation. It also indicates how a multiplicity of actors – including state and non-state actors – can extend the reach of international criminal law, when the International Criminal Court (icc) cannot act.

Simon Adams

The failure of the international community to adequately respond to patterns of discrimination against the ethnic Rohingya minority in Myanmar (Burma) eventually led to a genocide. The so-called “clearance operations” launched by Myanmar’s military in August 2017 tested the resilience of the international community’s commitment to defending human rights and upholding its Responsibility to Protect (R2P) populations from genocide, ethnic cleansing, crimes against humanity and war crimes. Two years later the UN Security Council has still not adopted a single resolution to name the crime committed against the Rohingya, or to hold the perpetrators accountable. Nevertheless, Rohingya survivors and international civil society have continued to campaign for justice under international law, and to advocate for targeted sanctions to be imposed on those responsible for atrocities. Faced with an inert Security Council, some UN member states have adopted inventive diplomatic measures to uphold their responsibility to protect.

Emmanuel Roucounas

This rich and remarkable volume offers an overview of the most important schools, movements and trends which make up the theoretical landscape of contemporary international law, as well as the works of over 500 authors. It moves beyond generalization and examines how the relevant literature deals with the basic issues of the international legal system, such as international obligations, legitimacy, compliance, unity and universality, the rule of law, human rights, use of force and economics. It offers insights into the addressees (the state, international organizations, individuals and other private persons), and the construction of international law, including law-making, the relationship between norms, and interpretation. Moreover, it widens the discourse by addressing old, yet enduring, as well as new concerns about the functioning of the international legal system, and presents views of non-international lawyers and political scientists regarding that system. It is a valuable analysis for researchers, students, and practitioners.

A Guardian of Universal Interest or Increasingly Out of its Depth?

The International Seabed Authority Turns 25

Richard Collins and Duncan French

In contemporary debates on the authority of global institutions, there is an important yet often overlooked organisational curiosity: namely, the International Seabed Authority (‘ISA’). The ISA reflects a highpoint in international communitarian governance. Premised around traditional notions of access, control and allocation of deep seabed resources, its mandate is both invariably spatial-temporal, and yet also limited and functional. Its purpose is to govern the extraction of seabed mineral resources for the collective benefit of the international community. To achieve that ambition, however, a highly complex and bureaucratic regulatory structure has been established. In this paper we aim to consider this tension in the mandate of the ISA, particularly insofar as it manifests in aspects of its institutional design and functioning in practice. Recognising these dynamics not only helps one better understand governance of the deep seabed, but also broadly demonstrates the innate tensions in granting institutional control over common spaces.

An Interim Post-Mortem

Specialised Courts in the EU Judicial Architecture after the Civil Service Tribunal

Graham Butler

The EU treaties allow the Union legislature to establish specialised courts within the institution of the Court of Justice. This possibility was inserted by the Treaty of Nice, and by 2005, the Union’s first and only specialised court to date was established—the Civil Service Tribunal (‘CST’). The judicial architecture of the Union has undergone transformative changes in recent years, and as part of the reforms, the CST was abolished in 2016, marking an abrupt end to the Union’s brief use of specialised courts. This article offers an interim post-mortem of specialised courts, examining the Union’s experimentalism with a three-tier judicial institution by focusing on two unique features. Firstly, the role of judges at specialised courts; and secondly, the review procedure that may be undertaken by the Court of Justice. The article contemplates the future of specialised courts, drawing some constitutional lessons that can be learnt from this brief experiment.

Gloria Fernández Arribas

Treaty organs constitute a new system of international cooperation. The lack of definition and regulation for these new entities and their particularities deserves in-depth analysis due to its proliferation, especially in the area of international environmental law. This article will analyse the establishment of treaty organs and will seek a definition that allows them to be differentiated from international organizations. It will give attention to the concept of a set of organs and legal personality to determine the differences between international organizations and treaty organs. Finally, the possible application of international institutional law to treaty organs will be studied.

Yearbook of International Organizations 2019-2020, Volume 2

Geographical Index - A Country Directory of Secretariats and Memberships

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Edited by Union of International Associations

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Edited by Peter Quayle and Xuan Gao

This second volume of the AIIB Yearbook of International Law examines the role of international organizations in promoting effective dispute resolution. It is divided into five parts to reflect a series of overarching themes and relationships. Firstly, international arbitration’s effectiveness and affinity with multilateral institutions. Second, international organizations as proponents of the norms of dispute resolution. Third, the dispute resolution mandates of international organizations. Fourth, the role of dispute resolution and economic development. Together, this diversity of perspectives offers convincing evidence that effective dispute resolution is a precondition to successful economic development—and that international organizations have an essential role to play in promoting both.

The fifth part presents the 2018 AIIB Law Lecture given by Georg Nolte, Chair of the International Law Commission, on the subject of ‘International Organizations in the Recent Work of the International Law Commission’ and the 2018 AIIB Legal Conference Report.

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Edited by Union of International Associations

The Yearbook of International Organizations provides the most extensive coverage of non-profit international organizations currently available. Detailed profiles of international non-governmental (NGO) and intergovernmental organizations (IGO), collected and documented by the Union of International Associations, can be found here. In addition to the history, aims and activities of international organizations, with their events, publications, and contact details, the volumes of the Yearbook include networks between associations, biographies of key people involved and extensive statistical data.

Volume 1 (A and B) of the Yearbook of International Organizations covers international organizations throughout the world, comprising their aims, activities and events. This includes names (in English, French and, where available, other languages), abbreviations and descriptions of over 34,000 not-for-profit organizations currently active in every field of human endeavor, as well as references to associated organizations, whose goals cross all economic, political and geographical borders, offering an insight into new, productive relationships.

Volume 1 also allows quick and easy cross-referencing from volumes 2, 3, 4, and 6.

Alex J. Bellamy and Stephen McLoughlin

Miliary intervention remains a controversial part of human protection. Indispensable in some circumstances, military intervention confronts significant structural challenges which means that it is used only rarely and has the propensity for causing unintended negative consequences. In this essay, we examine the place of humanitarian intervention within the human protection regime. Focusing on the case of Libya, we argue that the UN Security Council has now accepted that the use force, even against a sovereign state, is a sometimes legitimate response to mass atrocities. But the Libya experience also raised three major challenges – challenges of regime change, accountability, and selectivity – that will have be addressed if military intervention is ever to become a legitimate part of international society’s anti-atrocities arsenal. First, we show how increased international activism after the Cold War helped put downwards pressure on the incidence of mass atrocities worldwide. Second, we explain why armed intervention remained a controversial and rarely employed instrument of human protection. Third, we argue that the UN Security Council’s decision to authorise armed intervention in Libya represented a significant development in the place of armed intervention as a tool of human protection. Finally, we examine the political consequences of the intervention and argue that these will need to be addressed in order to rebuild sufficient trust to allow future considerations of the use of force for humanitarian purposes.

Andrea L. Everett

The practice of humanitarian military action has changed markedly in the 21st century when compared with the 1990s. This essay explores three broad trends that have shaped this evolution. First, the UN has adopted the protection of civilians as a central element of its agenda and as a guiding principle for reforming its peace operations and its responses to atrocities such as genocide and ethnic cleansing. Second, major powers have played a central role as belligerents or patrons of belligerents in many of the worst conflicts of the last two decades. And third, the wealthy Western states with the greatest resources and military capabilities for ambitious humanitarian operations have substantially reduced their direct contributions to these missions. Together, these developments have shifted the balance of responsibility and effort for humanitarian military operations toward the UN and developing countries; constrained the ambitions of these missions; limited what they can accomplish and contributed to gaps between the expectations they create and the protection they are able to deliver; and discouraged meaningful action in response to many of the century’s most devastating conflicts.

Eglantine Staunton

Since the end of the Cold War, Iraq has faced three international interventions. While their humanitarian component was a secondary – and at times, arguable – factor, they all played a central role in normative debates on the extent to which states should protect populations from mass atrocities beyond their borders (and what that actually entails), making Iraq a central piece of the human protection puzzle. In addition to analysing how Iraq’s fate has played a key part in the development of human protection over the years, the article argues that France had a central role in both the interventions and the normative debates they generated, and investigates its role in depth. By doing so, it deepens our understanding of human protection, France’s foreign policy and Iraq’s development.

Pınar Gözen Ercan

Bringing into focus the two formal debates on the Responsibility to Protect that took place in 2009 and 2018, this article identifies the approaches of member states towards the humanitarian use of force by locating it in the UN’s deliberations on R2P. To this end, the article compares and contrasts country statements in order to trace states’ general approach towards humanitarian intervention on the basis of their reflections on R2P. Following from this, the article examines whether or not states’ approaches to humanitarian intervention have been transforming in the twenty-first century, and evaluates how the humanitarian use of force is perceived in relation to the R2P framework that was embraced by the member states of the UN General Assembly in 2005, and how this affects the future of R2P.

The ILO @ 100

Addressing the past and future of work and social protection

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Edited by Christophe Gironde and Gilles Carbonnier

On the occasion of the centenary of the International Labour Organization (ILO), this 11th special issue of International Development Policy explores the Organization's capacity for action, its effectiveness and its ability to adapt and innovate. The collection of thirteen articles, written by authors from around the world, covers three broad areas: the ILO’s historic context and contemporary challenges; approaches and results in relation to labour and social protection; and the changes shaping the future of work. The articles highlight the progress and gaps to date, as well as the context and constraints faced by the ILO in its efforts to respond to the new dilemmas and challenges of the fourth industrial revolution, with regard to labour and social protection.

Contributors are Juliette Alenda-Demoutiez, Abena Asomaning Antwi, Zrampieu Sarah Ba, Stefano Bellucci, Thomas Biersteker, Filipe Calvão, Gilles Carbonnier, Nancy Coulson, Antonio Donini, Christophe Gironde, Karl Hanson, Mavis Hermanus, Velibor Jakovleski, Scott Jerbi, Sandrine Kott, Marieke Louis, Elvire Mendo, Eric Otenyo, Agnès Parent-Thirion, Sizwe Phakathi, Paul Stewart, Kaveri Thara, Edward van Daalen, Kees van der Ree, Patricia Vendramin, Christine Verschuur.

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Georg Nolte

Abstract

The United Nations International Law Commission occasionally deals with the law relating to international organizations. A well-known example is its work in preparation of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986. It is less well-known, but perhaps more important for the practice of international organizations, that the Commission has in recent years also addressed other relevant issues in this field. Those include the responsibility of international organizations (2011), the role which the practice of international organizations may play in the interpretation of their constituent instruments (2018) and in the formation of customary international law (2018), as well as considerations on whether the topic ‘Settlement of disputes to which international organizations are parties’ (2016) should be put on its agenda. This chapter reflects the 2018 aiib Law Lecture, summarizing the work of the Commission on these aspects of the law of international organizations and engages in some general reflections.

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Andreas Baumgartner

Abstract

This chapter positions commercial dispute resolution as a major enabler of economic development. Going one step further, it argues that commercial dispute resolution also makes for good ‘lighthouse’ judicial reform projects, due to its focused scope and the quick impact potential in an area where competition between countries requires urgent action. Success requires a comprehensive approach around five building blocks: the legal basis; organisational and physical setup; people excellence; communications; and overall strategy and change management. In its second half, the chapter moves from today to setting out four hypotheses for the future: Firstly, courts of the future will be a service rather than a location, with courtrooms of the future being virtual and customer centric providers capturing the market. Second, commercial dispute resolution will become far more differentiated, as well as competitive on the international stage. Third, private sector solutions will complement and compete with state-offered or endorsed solutions. Fourth, artificial intelligence is about to change the face and nature of dispute resolution fundamentally. Each of those trends offers ample opportunities to unlock economic potential. The chapter concludes by pointing out how international organizations can contribute.

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Matthew Gearing and Joe Liu

Abstract

This chapter traces the evolution of the Hong Kong International Arbitration Centre (hkiac)from 1985 when it was established as a regional arbitration center to its present status as one of the world’s major international dispute resolution organizations. The chapter focuses on hkiac’s contributions to effective international dispute resolution over that time, including its participation in legislative reforms in and outside of Hong Kong, its global outreach efforts and its promulgation of arbitration rules with trend-setting provisions for increasingly complex disputes. hkiac’s case statistics will be used to identify trends in international dispute resolution and to present hkiac’s experience in international commercial and investment treaty cases involving governments entities or international organizations.

The chapter will then discuss the use of hkiac for dispute resolution by international organizations. In that respect, real-life examples will be used to examine a number of disputes that were submitted by an international organization to hkiac for arbitration under a loan agreement or a shareholders agreement. The chapter will also discuss a recent project in which an international organization decided to include an hkiac dispute resolution clause in its employment agreements after considering other alternatives.

The chapter will conclude by addressing hkiac’s unique position to resolve disputes between Chinese and non-Chinese parties with a particular focus on disputes arising from China’s Belt and Road Initiative.

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Ramit Nagpal and Christina Pak

Abstract

This chapter focuses on the developmental aspect of dispute resolution based on the experience of the Asian Development Bank (adb) over the last twenty years. adb has undertaken projects that support dispute resolution mechanisms in its developing member countries with the aim of achieving development impacts towards a more inclusive and sustainable economic development in Asia and the Pacific. This chapter posits that the promotion of dispute resolution through thematic or targeted interventions has yielded more effective results compared to larger-scale interventions through broader justice sector reform programs. This is demonstrated through adb’s recent experience financing and implementing technical assistance projects under its Office of General Counsel’s Law and Policy Reform Program focused on environmental and climate change adjudication, access to justice in gender-based violence cases and creating and strengthening international arbitration laws to foster foreign direct investment and cross-border trade. adb does not necessarily shy away from ambitious investments in the justice sector, but recent experience has shown that through smaller, well-targeted interventions with strong ownership by key stakeholders within their absorptive capacity, it has been able to demonstrate meaningful impact in the area of dispute resolution.

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Malik R. Dahlan

The regionalism versus internationalism debate has given rise to a rich discourse in international trade law. Regionalism is viewed either as a way to promote international integration, or to protect regions and thus against the multilateral spirit that characterizes a truly global organization. This debate is explored in international financial law and international financial institutions therein, with the Asian Infrastructure Investment Bank (aiib) and New Development Bank as examples. This chapter suggests that ‘principled’ dispute regulation, having an intellectual anchor in ‘multilevel governance’, provides a new dimension to underpin regional governance. Exploring China’s Belt and Road Initiative (bri) has the potential to redefine multilevel trade governance and the laws that establish its order. As a result, new ‘Eastern’ international legal norms are emerging. A new international trade and investment order will necessarily lead to disagreements over its interpretation. However, existing dispute resolution mechanisms may not work effectively. In order to overcome this practical challenge, this chapter examines some important legal aspects of the bri and offers a new concept of dispute regulation. For the central argument, mediation will be specifically analyzed to inform a new aiib paradigm. The chapter intends to begin a discussion of some emerging trends in international trade and relevant rules, in the context of the aiib.

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Cavinder Bull

Abstract

This chapter will discuss how international arbitration institutions have been innovating and improving rapidly in the last few years in order to meet the needs of users. Institutional rules have introduced provisions for emergency arbitrators, expedited proceedings and summary dismissal, just to name a few. Whilst there is still room for improvement, such innovations have helped to keep arbitration relevant and effective. The competition between various arbitral institutions has also contributed positively to spur arbitral institutions to do better. The beneficiaries of this dynamic are the parties that use international arbitration for dispute resolution as well as international trade more generally.

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Marie-Anne Birken and Kim O’Sullivan

Abstract

The practice of mediation dates back to very ancient times and was part of early Roman law. Mediators existed in many cultures, and often overlapped with the roles of traditional wise men and tribal chiefs. The settlement of disputes through mediation is also part of Confucian and Buddhist history in the belief that conflicts must be resolved peacefully to maintain the natural harmony of life and avoid losing respect of others. Although mediation, as a formal process for alternative dispute resolution, was more recently developed in Anglo Saxon countries and is now increasingly widespread in common law jurisdictions, it is equally suitable for countries with civil law traditions. This chapter considers the practice of mediation in Central Asia, specifically the Commonwealth of Independent States countries, and reports on the European Bank for Reconstruction and Development’s support for the development of mediation in that region. There is a perception that countries are less receptive to mediation than other countries because of their post-Soviet legacy, although the legal traditions of these countries include a number of out-of-court resolution mechanisms similar to mediation, even during the Soviet era. In any event, at a time when courts are under ever-increasing time and resource pressures, flexible dispute resolution processes are required that transcend national systems; be they of a common or civil law cultural tradition.

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Jingzhou Tao and Mariana Zhong

Abstract

China has been continuously making progress to improve its arbitration environment over the past several years. In the context of the Belt and Road Initiative (the bri), the Chinese government expressly called for judicial support for alternative dispute resolution in China, including international arbitration. In response, the Supreme People’s Court of China (spc) issued several judicial documents by the end of 2017 in order to standardize and improve Chinese judiciaries’ review of arbitration-related matters. Furthermore, innovative measures were taken with respect to China’s Free Trade Zones (ftz) concerning redefinition of foreign-related factors, which had an impact on whether foreign-invested enterprises in China could submit their disputes to arbitration abroad, and under what circumstances to permit ad hoc arbitration in China. Various Chinese arbitration institutions have also updated their arbitration service.

The establishment of the China International Commercial Court (the cicc) is also a notable development as it seeks to integrate and streamline the mechanisms of litigation, arbitration and mediation. It also features such innovations as an expert committee, relaxed rules on evidence and language use. Admittedly, the cicc is still in its new-born stage and many operational rules are yet to be designed and applied. Still, parties to international commercial disputes are already eager to test this mechanism and take advantage of the accessibility to the spc via the cicc system.

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Hugo Siblesz

Abstract

This chapter addresses the role of international organizations in promoting the legitimacy in and effectiveness of alternative dispute resolution regimes. Defining legitimacy as the right to rule, allowing the parties to accept and comply with the rulings of dispute resolution regimes, the chapter argues that international institutions initially possess very little ‘source legitimacy’ or ‘constitutive legitimacy’ and are sometimes seen as lacking ‘process legitimacy’ or ‘outcome legitimacy’. Using the framework of source, process, and outcome, the chapter argues that international organizations can play a strategic role in enhancing the source and process legitimacy of alternative dispute settlement regimes, and therefore the effectiveness of these regimes by embodying and endorsing in their work key values such as procedural justice, neutrality, and independence. The chapter further suggests that international organizations have an incredibly powerful role in supplementing the legitimacy of alternative dispute resolution regimes through avenues that are created by virtue of their institutional work and knowledge.

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Locknie Hsu

Abstract

This chapter posits that international organizations (IOs) can be positive role models in the promotion of effective dispute resolution in a number of ways. The Asian Infrastructure Investment Bank, an IO which is of relatively recent vintage, has the advantage of being able to study and absorb best practices in all international and specialist dispute settlement tribunals. It also stands poised to articulate a set of best aspirations and to transform them through implementation into reality.

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Jacomijn van Haersolte-van Hof and Romilly Holland

Abstract

This chapter provides an overview of arbitration conducted pursuant to the arbitration rules of the London Court of International Arbitration (lcia) and specifically identifies why the arbitrator appointment and challenge mechanisms set out thereunder enable a robust, efficient and transparent arbitral procedure. It also looks to the lcia’s practice of publishing vital information about lcia arbitration, including in respect of the average duration and costs of an arbitration, and calls for the broader dissemination of such information by all arbitral institutions to inform and benefit users.

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Wenwen Liang

Abstract

This chapter is not intended to challenge the legitimacy of the role played by the World Bank in the establishment of the International Centre for Settlement of Investment Disputes (icsid). Instead, the purpose is to identify and look into the key legality and legitimacy concerns about icsid’s establishment from an international law perspective, taking into consideration the evolving legality and legitimacy discourses over the last decades. In particular, it examines the features and background of icsid’s creation, the role of the World Bank therein, the legal basis of such a role under international institutional law and the law of treaties, and the procedures employed by the World Bank in its formulation of the icsid Convention. This chapter sheds some light on how similar initiatives of international organizations may be undertaken to comply with legality and legitimacy requirements, in order to better recommend themselves to member States.

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Asif H. Qureshi

Abstract

This chapter focuses on dispute settlement in the field of international trade within the World Trade Organization (wto) along with the contribution of the wto to the resolution of foreign trade disputes in domestic systems. This discourse is set under the shadow of the current impasse in the wto, precipitated by the United States’ blocking of appointments of Members of the Appellate Body of the wto. In particular the chapter sheds light on the reasons for the US decision to block future appointments and possible legal analysis of the US actions. In this discourse the notion of a ‘trade war’ is explored along with the capacity of the wto to manage a trade war. The chapter concludes with the suggestion for a holistic approach to manage the current and future such crisis–with particular reference to the interface of the national security defence, both within the domestic and international legal regimes, with dispute settlement processes. This chapter does not purport to be exhaustive of the issues raised.

The Right to Appeal in International Criminal Law

Human Rights Benchmarks, Practice and Appraisal

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Drazan Djukić

In The Right to Appeal in International Criminal Law Dražan Djukić describes appeal proceedings in international criminal law and evaluates them against human rights benchmarks. While international criminal courts and tribunals mainly comply with these benchmarks, they have fallen short in certain important areas.
Despite their importance to the legal process, appeal proceedings tend to receive limited attention. On the basis of benchmarks arising from international human rights law, Dražan Djukić systematically assesses the law and practice concerning appeal proceedings in international criminal law.

Bartosz Soloch

Abstract

Recent decisions of European and national courts, as well as those of arbitral tribunals, concerning the Achmea saga seem to be plentiful enough to draw preliminary conclusions as to the relationship between EU law, intra-EU international investment agreements (IIAs) and the national laws of EU-Member States. In order to get the proper picture of the situation, however, it is necessary not only to analyse the recent decisions of the Court of Justice of the European Union (CJEU) and their consequences from these three perspectives, but, equally, to understand how they interact with each other. Such an analysis indicates the real possibility of the emergence of a rift between the practice of the EU and national courts rejecting the validity of investment arbitration agreements, on the one hand, and investment tribunals, on the other. In any case, such a divergence would put into question the IIAs’ claim to provide a stable regulatory framework for international investments in the EU, which, in turn, would strengthen the argument for termination of intra-EU IIAs.

Judith Levine

Abstract

This article deals with the ethical implications of arbitrator resignations. When an arbitrator resigns it can severely disrupt proceedings. Arbitrators have a positive duty to complete the mandate for which they have been appointed, and a corollary duty not to resign without justification. This article considers steps that can be taken at the outset of proceedings to minimise the likelihood of resignation. It then discusses ethical dilemmas associated with five common circumstances that can arise during the course of arbitral proceedings which might justify resignation. The article then recalls rare but disturbing instances when a resignation itself may be ethically dubious and sets out measures available to discourage such conduct. Ethical issues connected with resignation have traditionally been given less prominence than discussion of conflicts and challenges, but should not be overlooked in any new endeavors aimed at developing a code of conduct for international arbitration.

Steven William Kayuni and Mtendere Mute Gondwe

Abstract

Since Hissène Habré’s Judgment by the Extraordinary African Chambers (EAC), the world has anxiously awaited the processes that the African Union (AU) would put in place for the amelioration of the victims’ circumstances. Pursuant to the AU’s pledge and unfaltering support for the EAC, in early 2018 the AU Heads of State and Government Assembly adopted a Statute establishing the Hissène Habré Victims Trust Fund. It is anticipated that the Fund is likely to be an unsteady vehicle facing numerous challenges regarding law and policy formulation, interpretation and implementation, such as flawed decision-making processes, and a lack of proper policy direction and State cooperation, which have the potential of heavily impeding this international criminal justice enterprise. However, there exists an opportunistic trajectory for the Fund as the current trends, practices and rich jurisprudence of other criminal tribunals and courts can inform the Fund’s processes and positions. The Fund’s decision-makers should make a concerted effort in a sturdy and convergent direction that mirrors the victims’ potential values, consonant outcomes and responsibilities.

Fernando Lusa Bordin

Abstract

The present column covers procedural developments at the International Court of Justice for the period spanning from 1 April 2017 to 31 January 2019. Those comprise the interpretation of compromissory clauses; res judicata; admissibility challenges based on abuse of rights and abuse of process; conditions for the indication of provisional measures, in particular the requirement that the rights asserted be plausible; and the admissibility of counter-claims.

Arman Sarvarian

Abstract

In April 2016, the International Court of Justice held a colloquium to commemorate the 70th anniversary of its establishment. One of the principal themes of this event was the potential adoption of improvements to the procedures and working practices of the Court. Responses to a Counsel Survey revealed a general interest in procedural reform at the Court, particularly with respect to the areas of evidence and procedural efficiency. The purpose of this article is to set out a case for procedural reform at the ICJ, presenting multiple options, with supplementary reference to the ITLOS. Whereas the work of the Committee also addresses procedural integrity or “the sound administration of justice”, this contribution will focus upon the Court’s case management procedures to call for their reform in order to enhance procedural economy. This would enable the Court to improve its “throughput” to be able to cope with an expanded caseload.

Antonio Arcudi

In recent norm research, the question of the relationship between norm contestation and norm dynamics has been the subject of substantial debate. However, until now too little attention has been paid to the question of how and when contestation intensifies. Based on the differentiation between applicatory and validity contestation, this article proposes a specific mechanism for intensifying contestation—understood as an increase in the contestation itself as well as an extension to its validity level—by treating norm modification as an intervening variable. The main argument is that norm modification may be necessary to reconcile different interpretations of norms. Consequently, if norm modification does not occur, norm contestation may intensify. This article elaborates this mechanism by examining the controversies involving the International Criminal Court (icc). It shows that contestation began at a low and applicatory level but intensified after several attempts at norm modification had failed.

Introduction

Norm Contestation and its Effects: Challenges to the Responsibility to Protect and the Responsibility to Prosecute

Gregor P. Hofmann and Lisbeth Zimmermann

Contestation is currently one major field of research on international norms: does contestation strengthen or weaken a norm? What role does international law play in this regard? How do norm proponents and norm challengers change their strategies in norm contestation processes? Drawing on constructivist perspectives as well as on international law, the articles in this Special Issue explore the effects of norm contestation and its dynamics by analysing the Responsibility to Protect (R2P) and the responsibility to prosecute from different theoretical perspectives.

Nicole Deitelhoff

Recurring contestation of the application of the Responsibility to Protect (R2P) in conflict situations has given rise to assessments that portray R2P as not a norm at all, but rather a norm-to-be or one in decay. This article aims to show that norms do not lose their validity because they are contested. All norms rely on applicatory discourses to establish their appropriateness for given situations. Contestation regarding their application can even strengthen norms when it provokes learning processes. Norm validity is at risk if contestation radicalises, that is, turns into norm justification. As yet there are only few signs of radicalisation of the contestation of R2P.

Gregor P. Hofmann and Kavitha Suthanthiraraj

This article seeks to shed light on the question of how ‘meanings’ of an international norm adapt to norm contestation and asks whether and how R2P is being adapted to contestation. We contend that the reframing of an existing international norm by norm proponents in order to adapt it to dynamics of norm contestation have not been discussed adequately in the literature to date. Constructivist research on norm contestation could benefit from taking into account concepts in the new institutionalist literature. By combining the institutionalist concepts of ‘borrowing’ and ‘sharing’ with the literature on norm entrepreneurs and their framing-attempts in norm diffusion processes, we conjecture that an expansion in contestation increases the likeliness of the adaptation of the norm in question along the line of the contested issues. We aim to trace this adaptation by analysing the dynamics of R2P’s change in meaning and focus in its process of implementation.

Shirley V. Scott and Roberta C. Andrade

The Responsibility to Protect (R2P), touted in 2009 as ‘the most dramatic normative development of our time’, is highly contentious, having generated a scholarly literature far greater than its real-world impact would seem to warrant. This may well be because of its potential to challenge and displace core existing norms, the most widely cited of which is sovereignty. This paper draws on the theory of Cognitive Structures of Cooperation (csc Theory) to identify the relationship of R2P to existing normative structures, including the Charter of the United Nations, with a view to assessing the depth of the challenge posed and the potential consequences if the emergent norm were to be fully embraced. The analysis concludes that, rather than representing the object and potential victim of the R2P assault, sovereignty is better understood as having represented a decoy in this process of normative contestation.

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Francisco Pascual-Vives

In Consensus-Based Interpretation of Regional Human Rights Treaties Francisco Pascual-Vives examines the central role played by the notion of consensus in the case law of the European and Inter-American Courts of Human Rights. As many other international courts and tribunals do, both regional human rights courts resort to this concept while undertaking an evolutive interpretation of the Rome Convention and the Pact of San José, respectively. The role exerted by the notion of consensus in this framework can be used not only to understand the evolving character of the rights and freedoms recognized by these international treaties, but also to reaffirm the international nature of these regional human rights courts.

Cristina Contartese

Within the debate on the attribution of international responsibility to international organizations and/or its Member States, the role that the internal rules of the organization may play is not settled. The competence-based approach, where a relationship is supposed to exist between the eu/Member States’ division of competences and international responsibility, and the normative control doctrine, where the Union is deemed responsible for the actions of its Member States in the course of implementing eu law, are at the heart of such debate. This contribution aims to investigate whether the recent practice concerning the Union’s international responsibility in the fields of fisheries and investment adds clarifying elements. The analysis will specifically focus on the 2015 itlos Advisory Opinion (Case No 21), an award under the Energy Charter Treaty (Electrabel v Hungary), and the investor-to-state dispute settlement mechanisms laid down in the recent eu bilateral investment agreements. Although one of these cases seems to implicitly recognise the normative control as a rule for the attribution of conduct to the eu when its Member States act implementing Union acts, what is missing, however, is a clear and deep debate on its specific elements. Discussions on a competence-based approach and normative control seem generally confused at the eu as well as at the international community level, suggesting that important opportunities have been missed to properly re-open the debate on the role of the organizations’ internal rules for the attribution of international responsibility.

A Second Century for What?

The ilo at a Regulatory Crossroad

Francis Maupain

The question examined in this article is whether, as it engages in its second century, the ilo remarkable resilience will lead it to face the challenge of its “regulatory” raison d’être in a context where the uneven social impact of globalisation seems to make it more relevant than ever. The first part of the article deals with the ilo constitutional capacity to effectively discharge this regulatory function. The answer hinges on the dialectical interplay between the specific legitimacy arising of the ilo tripartite structure; its capacity to do so through persuasive ‘state centric’ means; and finally the tripartite willingness to discharge it. The second part discusses the likelihood of two possible regulatory ‘atrophy’ or ‘revival’ scenarios. The first may develop as a result of divergent motivations and interests among ilo constituents, and the trend towards its further integration into the un through the 2030 sdg. The second may prevail as a result of the growing external pressure for a more equitable distribution of the benefits and constraints (including environmental) of global interdependence. This pressure needs to be met to spare disruptive consequences, and the ilo could help meet it—subject to a more imaginative and integrated use of its normative tools and of the ilc as a ‘real economy’ forum, to promote greater coherence in the pursuit of socio-economic-environmental commitments. It concludes by highlighting that the ilo offers a readily available regulatory potential which cannot be found elsewhere at the universal level; the centenary celebration could offers a unique opportunity to trigger the momentum necessary to optimise it—though it may not be the most likely outcome.

Noëlle Quénivet

Whilst most legal scholarship focuses on the responsibility of the United Nations for human rights violations few studies have ascertained the legal basis of the primary rules leading to such responsibility. This article fills this gap by reviewing the theories used to bind the un to customary human rights law: (1) the un has inherited its member states’ obligations, (2) participation in the formation of customary human rights law implies being bound by it, (3) the un is bound by international law because it has legal personality and (4) as the un is embedded in international law it must comply with its norms. Such theories are further tested against the backdrop of international organizations’ theories. The article draws the conclusion that (1) should be rejected, (2) is not yet legally sound and (3)-(4), despite their flaws, are more persuasive. Ultimately, recourse must be had to general international law.

Diplomatic Privileges and Immunities for igo-like Entities

A Step Towards a New Diplomatic Law?

Davorin Lapaš

Contemporary international relations have resulted not only in the establishment of intergovernmental organizations (‘igos’), but also in the emergence of certain igo-like entities which are entering into ‘diplomatic-like’ relations with states, characterised by privileges and immunities similar to those provided under classic diplomatic law. This paper analyses such diplomatic-like relations between states and a number of these igo-like entities primarily in relation to so-called ‘trans-governmental organizations’ (‘tgos)’. In addition, organizations composed of formally non-state entities, but with an undoubtedly public purpose, such as the International Committee of the Red Cross (‘icrc’) or the International Federation of Red Cross and Red Crescent Societies (‘ifrc’), as well as other so-called ‘advanced’ non-governmental organizations (‘ngos’), will also be discussed due to their participation in legally regulated international, diplomatic-like relations with states and igos.

Timo Kivimäki

This article investigates how selfish justifications enter cosmopolitan rationales in the political plane of the discourse. It makes sense of the ways in which selfish ideas are allowed to meddle in and merge with morally-based cosmopolitan norms. The article commits to the ontological and epistemological premises of critical discourse analysis, and focuses on us presidential papers since 1989. It substantiates the claims it makes by using computer-assisted discursive process tracing method as a supporting tool for qualitative analysis of texts. The computerised analysis of discursive entanglements reveals that cosmopolitan protective operations are in fact mainly framed nationalistically. The roots of such selfish nationalistic arguments for international protective military operations can be traced in the realist and hegemonic fallacies that emphasise the naturality of national selfishness and the need for global hegemony. Furthermore, the article shows how the entanglement of discourse strands about ‘protection’ and ‘innocent victimhood’ as well as the entanglement between ‘crime prevention’ and ‘terrorism prevention’ legitimate selfish internationalist arguments in the us political debate.

Timea Spitka

Although international norms on the Responsibility to Protect (R2P ), norms stemming from United Nations Security Council Resolution 1325 and the agenda of Women, Peace and Security (wps) have shifted the narrative from a state-centric to a human-centric approach to security, they have failed to intersect in the most difficult contexts. This paper examines the intersections between Pillar iii of R2P, Resolution 1325 and the agenda of wps with a focus on protection in Gaza. Within the Gaza context, all authorities can be seen as failing in their responsibility to protect, however, no steps have been taken toward operationalisation of protection under R2P. Examining protection through a gendered lens provides a critical mirror of strategies of protection as well as a roadmap towards improvement. The article argues that R2P in combination with the agenda of wps provides a potential tool for constructing a consensus prioritising protection of civilians in the most difficult contexts.

Mohammad Zahidul Islam Khan

What instruments and mechanisms are available to harness the ‘political will’ to pursue justice for the allegations of ‘atrocity crime’ in Rakhine, Myanmar? Analysing country’s ratification trend, declarations upon ratification on relevant global instruments, and interactions with the un on human rights issues, this paper reveals the ‘mind’ of Myanmar and its obligations. Exploring the mechanism of four International Crime Tribunals (icts), it outlines the pathways to pursue justice. Revealing the inadequacies of current actions by key state actors resulting in invidious outcomes that privilege impunity for atrocity crimes, the paper suggests ways to harness the political will to pursue justice. This paper contends that the establishment of an ict for the trial of atrocity crimes in Rakhine (ictm-R) would be best facilitated by: a consensus mandate to prosecute individuals and not the state; precisely defined jurisdiction; and provisions to integrate the host nation’s apparatus, buttressed by the advocacy of the right groups and media.

Hamzah S. Aldoghmi

Recently, there has been increasing recognition that the Responsibility to Protect principle (R2P) and refugee protection are inextricably linked and conceptually connected. The question remains, however, whether the link between the two protection frameworks can provide a basis for the protection of prima facie refugees fleeing mass atrocity crimes. This article identifies that prima facie refugees have the right to protection irrespective of where they arrive. It finds that the prima facie provision is one that exists under international refugee law and is highly relevant to the R2P principle. R2P facilitates a framework of prima facie protection, but it must include the political and legal norms of R2P and international refugee law. The article argues that expanding the idea of R2P and refugee protection as an interlinked agenda offers a protection-oriented framework to address the protection needs of prima facie refugees fleeing mass atrocity crimes.

Beyond UN Accountability for Human Rights Violations

Host State Inertia and the Neglected Potential of Sovereign Protection

Frédéric Mégret

The overarching focus on the United Nations and its agents for human rights violations and abuses they may have committed, as well as the attention to troop contributing states and even ‘victims’, has broadly shifted attention away from the role of the host state in peace operation. This article seeks to unpack that omission and suggests that it is far more problematic than commonly thought, in particular because it tends to reproduce some of the problematic features of the political economy of peacekeeping that are the background of rights abuses in the first place. Instead, as part of a tradition of thinking of human rights in terms of sovereign protection, the article makes the case for taking much more seriously the role that the host state can and should have in order to address abuses by international organizations. It emphasises how international legal discourse has tended to ‘give up’ on the host state, but also how host states have themselves been problematically quiescent about violations occurring on their territory. This has forced victims to take the improbable route of seeking to hold the UN accountable directly, bereft of the sort of legal and political mediation which one would normally expect their sovereign to provide. The article contributes some thoughts as to why host states have not taken up their citizens’ cause more forcefully with the United Nations, including governmental weakness, a domestic culture of rights neglect, but also host state dependency on peace operations. The article then suggests some leads to rethink the role of the host state in such circumstances. It points out relevant avenues under international law as well as specifically under international human rights law, drawing on the literature developed to theorise the responsibilities of states in relation to private third-party non-state actors within their jurisdiction. It argues that there is no reason why the arguments developed with private actors, notably corporations, in mind could not be applied to public actors such as the UN. Finally, the article suggests some concrete ways in which the host state could more vigorously take up the cause of rights abuses against international organizations including by requiring the setting up of standing claims commissions or making more use of its consent to peace operations, as well as ways in which it could be forced to do so through domestic law recourses. The article concludes by suggesting that reinstating the host state within what should be its natural prerogatives will not only be a better way of dealing with UN abuses, but also more conducive to the goals of peacekeeping and state construction.

Clemens Treichl and August Reinisch

Project-affected individuals are increasingly bringing tort claims against international financial institutions in domestic courts. In the US, such plaintiffs such plaintiffs have regularly failed to overcome the obstacle of the defendant institutions’ jurisdictional immunity under the International Organizations Immunities Act. In pending litigation, the US Supreme Court has resolved a long-standing debate as to its scope.

This paper examines the issue of jurisdictional immunity in the context of international project finance. It focuses on the specific frameworks established in treaties, analyses the interplay between international and domestic US norms and looks at possible implications of the exercise of domestic jurisdiction.

A key finding is that US courts, at least previously, used to grant more extensive immunities than international law required. While doubts persist as to whether domestic courts are a suitable venue for claims brought by project-affected people, existing means of international dispute settlement should be strengthened.