Max Planck Institute Luxemburg for International, European and Regulatory Procedural Law

This short essay presents a legal analysis of cyber force, an intangible form of international coercion that exploits computer networks leaving havoc in its wake. After providing recent examples of this phenomenon, as well as circumscribing its scope, the essay sets out to determine to what extent cyber force can be reconciled with contemporary jus ad bellum. Two key questions will be addressed: is cyber force a use of force as defined in article 2(4) of the UN Charter, and if so, could it conceivably rise to level of an armed attack justifying self-defence as meant by article 51 of the same document? In order to respond to these queries, the analysis hinges upon the interpretative techniques of the Vienna Convention of the Law of Treaties as well as the current doctrinal debates regarding cyber force. The essay ends with a brief consideration of plausible prospects with respect to the regulation of this novel form of coercion.

The enforcement of outcomes in online dispute resolution (ODR) is a delicate problem. Since disputes arising out of e-commerce transactions are typically low in value, the traditional channels of coercive enforcement are often not a viable option. The article argues that the Bitcoin system can be used as a source of inspiration to devise new models of self-enforcement. The article describes the legal framework of ODR and argues that the goal of self-enforcement can be attained through the use of technology. It then describes the relevant features of the Bitcoin system, underlining its potential as a new forum for the expression of private autonomy. It then investigates the features of Bitcoin adjudication, before arguing that Bitcoin must be regarded as an original and self-contained system of dispute resolution, whose characteristics can be used to theorise new models of self-enforcement. Next, it compares four alternative models of self-enforcement, two of which take Bitcoin adjudication as an example. Finally, it puts forth recommendations for all actors involved in the implementation of self-enforcing ODR mechanisms and argues that different models should be left free to compete.

When ‘we’ want to punish the most serious crimes of concern to the international community as a whole, who is ‘we’? The article embarks on an excursion where ‘we’ in the contexts of international criminal law is pictured as ‘humanity’ or ‘international community’, as well as a variety of other collective subjects. The article examines how the rhetorical ambiguities of we-talk may serve both for alignment and persuasion, and usurpation and exclusion. More than a banal rhetorical device, does we-talk potentially grow into an instrument of persuasion and assimilation, totalizing parts into a whole that it controls or suppresses? What would that mean for ‘the pursuit of global justice’?

Defence date: 29 July 2011; Examining Board: Professor Marise Cremona, EUI Professor ; Ernst-Ulrich Petersmann, EUI Professor ; Giorgio Gaja, University of Florence ; Dr Esa Paasivirta, European Commission

WTO law does not require its direct effect in domestic legal orders. Whilst the stances taken in these are diverse, showing that direct effect is not denied on the whole to WTO law, all the major trading members of the WTO deny it. The fact that, in a case where a WTO member does not comply and is targeted by trade sanctions, the economic actors who in practice bear the burden of these sanctions are deprived of any recourse, may be considered unfair enough to question again the denial of direct effect. The analysis focuses notably on the EU where the debate has expanded more than anywhere else and concludes that direct effect should, even in the name of fairness or justice, be handled with caution.

Fossil fuel subsidies are prevalent around the world. Recent estimates from international organisations put the total value of global fossil fuel subsidies at between US$325 billion and US$5300 billion per year. These subsidies are widely considered to be both economically inefficient and environmentally harmful. From an economic perspective, they impose heavy burden on government budgets and crowd out public spending on other priorities, such as health and education. From an environmental perspective, they encourage the over-extraction and wasteful consumption of fossil fuels––the primary source of greenhouse gas emissions. They also impede the transition towards clean energy by undermining the competitiveness of renewable energy, and thereby diverting investment away from renewable energy sources. There is now a widespread recognition that fossil fuel subsidies constitute a major obstacle to tackling climate change and achieving sustainable development. This recognition is reflected in various intergovernmental agreements, including the Paris Agreement on climate change and the UN 2030 Agenda for Sustainable Development. The G20 is, however, the first intergovernmental forum not only to recognise the adverse economic and environmental effects of fossil fuel subsidies, but also to commit to reducing or ending those subsidies. The 2009 G20 Summit in Pittsburgh committed G20 countries to phase out inefficient fossil fuel subsidies over the medium term. Despite this landmark commitment, however, such subsidies remain significant within the group. The objective in this paper is to examine the nature and scope of the commitment, reflect on the implementation measures taken so far, and suggest some ways forward. The window of opportunity for fossil fuel subsidy reform created by recent developments––such as the adoption of Agenda 2030 (Sustainable Development Goals), the entry into force of the Paris Agreement, and the sharp drop in global oil prices––make the inquiry all the more pertinent and timely. The paper is organised around the following three questions: What is the scope of the commitment? The scope of the G20 commitment is generally limited to inefficient fossil fuel subsidies that encourage wasteful consumption. However, neither the Pittsburgh Summit nor subsequent G20 Summits clarified what constitutes an “inefficient fossil fuel subsidy” or “subsidies” in general. The ensuing ambiguity over the scope of the commitment is further complicated by the lack of clear implementation timelines. This means that individual G20 members decide for themselves not only what they consider to be inefficient fossil fuel subsidies, but also when to phase them out. What has been done so far? Ever since the Pittsburgh Summit, phasing out fossil fuel subsidies has been high on the G20 agenda. All subsequent G20 Summits have, at least, emphasised the need to implement the commitment. Some of these Summits have also taken additional steps to implement the commitment. The four major implementation measures taken thus far include: preparing national implementation strategies and timelines; establishing a self-reporting mechanism; forming a voluntary peer-review process; and commissioning studies on the scope and impacts of fossil fuel subsidies. This paper has examined the benefits and limitations of these measures and found that they are inadequate at best. What more needs to be done? Given the continued presence of fossil fuel subsidies and the shortcomings of the implementation measures taken so far, the final section of the paper focuses on policy options that would advance fossil fuel subsidy reform within the G20. In this respect, the paper presents policy options and recommendations ranging from i) clarifying the scope of the commitment by removing the vague terminology and defining fossil fuel subsidies; ii) to enhance transparency; iii) setting a clear deadline for eliminating fossil fuel subsidies; and iv) taking advantage of the G20’s position in global governance to advance fossil fuel subsidy reform in countries outside the group.

The evolution over the years of the mandates and missions of international organizations has reached an important milestone with the emergence and multiplication in the last decade of procedures and mechanisms having a direct impact on individuals and companies. This has gone together with the call for the creation of international remedies with judicial features. International organizations, including the World Bank, have established sanctions mechanisms in an effort to combat corruption and fraud. They are applicable to companies and individuals involved in activities with international financial institutions through procurement or consultancy activities. The World Bank experience offers an interesting example: the decision to sanction individuals and companies entailed the need to provide access to remedies to such non-state actors. External and internal pressures have pushed the institution into putting in place very quickly a mechanism with judicial features. Due process requirements have had a substantial impact on the profile of remedies available to non-state actors in this area.

International audience

European thought is at once both indispensable and inadequate in helping us to think through the experiences of political modernity in non-Western nations, and provincializing Europe becomes the task of exploring how this thought – which is now everybody’s heritage and which affect us all – may be renewed from and for the margins.1 Last Spring, the Rechtskulturen programme, an initiative of the Wissenschaftskolleg zu Berlin at the Transregionale Studien Forum, invited me to participate in a symposium on the Oxford Handbook of the History of International Law2 – a robust book of 1250 pages. I was asked to ‘critically assess’ the Handbook’s ‘global history’ approach, that is, to assess whether it was a successful step in ‘overcoming Eurocentrism’ in the history of international law. The symposium turned out to be a wonderful event, a gathering of historians, anthropologists, political scientists, and lawyers, where I became very conscious of my own professional language but where I also experienced a willingness to transcend disciplinary boundaries and biases. The following remarks should be interpreted as a continuation of that discussion. Before looking at some of the contributions in the Handbook that did depart from ‘well-worn paths’ (to use the editors’ expression) (3), I would like to say few words about the ‘global history’ approach (1) and the unfortunate resilience of Eurocentric voices in the Handbook (2). The ‘global history’ approach that inspired the Handbook emerged in the early 1990s, mostly in the Anglo-Saxon academic world, as ‘the answer of (Western) historians to globalization’ (at 8). Accordingly, it focuses on ‘transfers, networks, connections, and cooperation between different actors and regions, while trying to avoid the temptation to draw straight lines from one time and place to another’ (at 9). What was particularly important for the editors of the Handbook is the attention given by global historians to non-European societies and regions. Their history is understood as an autonomous development, and not as a mere reaction to European conquest. Similarly, the editors wanted to dislodge the sanctity of Western stories and to shift perspectives on the history of international law. Inspired by the inclusiveness of the ‘global history’ approach, the editors included histories written both from the centre and the peripheries, in order to fight the sense that there would be one and only one history of international law, which would be both linear and European. This can only be applauded. However, I become worried when I read that the editors’ overall ambition was to allow for ‘a multipolar perspective’ (at 10). This suggests that the conflicting histories of international law could be presented side by side, on equal grounds. The Handbook would be a fashion-like magazine, displaying the various perspectives so as to allow the reader/consumer to pick the most attractive one.3 The problem with such a liberal-pluralist approach is not only that it flattens differences and reduces political projects to commodities, but also that it makes its own politics invisible. No attention is given to the historical prevalence of Western narratives or to issues regarding the production of knowledge. Given the Handbook’s strong liberal assumptions, it is not surprising that its structure remains distinctively Eurocentric: most themes and actors belong to the understanding of international law as a modernizing project with no geographical bias and no implication in commercial exploitation (‘capitalism’ does not even appear in the index); the encounters between continents all involve Europe (why is there no section on the encounter between China and Japan, for instance?); and finally, out of the 21 individuals presented in portrait, 19 are white European men.4 My point is not that the editors failed to deliver a ‘global history’ in which everything would have been visible, for that is an impossible undertaking. Choices are needed. Rather, my point is that if the editors seriously aim at ‘overcoming Eurocentrism’ in the history of international law, then a radical shift of vocabulary – and not the search for a middle ground – is necessary to enable us to see things that were previously hidden. When the editors acknowledge that they did not succeed ‘in completely avoiding a Eurocentric perspective’ (at 2), it looks more like an incidental hiccup than an expressed recognition of their (mild centre-left) politics.5 One consequence of the Handbook’s liberal-pluralist approach is the resilience of Eurocentric voices. The most blatant example is found in the chapter on ‘The Protection of the Individual in Times of War and Peace’ by Robert Kolb. All rules that have, throughout history, governed the conduct of warfare outside Europe are swept away in one paragraph. Why? The problem with those rules, according to the author, is that they do ‘not truly aim at the protection of ‘individuals’ in the modern sense of the word’ (at 322). Such protection was only achieved in (Christian) Europe, through a process of codification and institutionalization that started in the 19th century and culminated with the adoption of the Geneva Conventions in 1949. In this self-glorifying account, there is no mention of the way in which the laws of war always allowed brutal forms of colonial warfare that would have been prohibited in European wars.6 There is no criticism whatsoever of the standard of civilization. On the contrary, ‘the idea of civilization [has] given rise to the fight against slavery and diseases, to the effort to protect the wounded and sick in war’ (at 331). It is also thanks to ‘a minimum standard of civilization’ (at 333) that the Institut de droit international adopted in 1929 a Bill of Rights, which, to the author’s regret, had no legally binding force. This is the epitome – or the caricature – of the Eurocentric voice that still thinks of itself as the true, universal one. The Eurocentric tone is not always that explicit in the Handbook. The chapter on ‘States: Rise and Decline of the Primary Subjects of the International Community’ is a subtle, yet remarkable, illustration of the Eurocentric narrative that turns away from states to universal institutions and technical professionalism.7 Having shown that sovereignty has always been the major stumbling block to any real progress towards an international community, Antonio Cassese ends his chapter with the following question: ‘when [will] the individual State’s authority … be replaced by the power of the community?’ (at 69). This narrative does not ‘overcome Eurocentrism’ because it speaks a thoroughly Eurocentric language. Indeed, there is not much difference between this teleological account and the international law that originated in late 19th century Europe as an anti-sovereignty project – that is, one that supported abstract cosmopolitan ideas, legal rules, and international institutions against the Realpolitik of statehood.8 The chapter on ‘Minorities and Majorities’ is also a missed opportunity. The story being told is one of a long struggle against statehood. Even though the author does mention that minority protection bears the mark of the civilizing mission of international law, the thrust of her chapter is devoted to showing that minorities have gradually been ‘included by the discourse as a possible new, emerging, international legal person’ (at 118). Nothing is said about what is done by the discourse. Nothing is said about the ways in which the changing interpretation of rules affected the identities and participation of traditionally marginalized groups such as colonial and nomadic peoples, ethno-cultural minorities, indigenous peoples, and women.9 It is a pity that so many Eurocentric accounts of the history of international law found a place in the Handbook, given that the editors genuinely tried to open up. The resilience of such accounts shows that, even if post-colonialism has become ‘international law’s official ethos’,10 it is still the case that ‘Europe rules as the silent referent of historical knowledge’.11 Once we acknowledge that too many histories of international law are still Eurocentric, what should we do? The editors’ response is clear: we have to ‘overcome’ that problem. Leaving aside the problem of how to proceed (I will come back to this), let me say a few words about the idea of ‘overcoming Eurocentrism’. This idea presupposes that it would be possible to get rid of Eurocentrism or to vanquish it once and for all, as if it were a tumour. Accordingly, once Eurocentrism had been overcome, we would be free to ask how the (now) truly universal international law can best end human suffering, while not falling prey to abuse by powerful states. I find this way of thinking to be part of the problem. As Anne Orford has pointed out, this way of thinking is ‘part of a tradition that is deeply ingrained in Western thought, imagin[ing] that “we who are presently alive are not compelled to repeat the past”‘.12 By arguing that legal concepts move across time and even space, she argues – together with Antony Anghie – against ‘the willed forgetting of international law’s imperial past’.13 This drawback suggests that the first way to deal with Eurocentrism is by continuing with the post-colonial critique. This consists of ‘the careful demonstration of the colonial origins of an international legal rule or institution’.14 One attempt is found in the chapter on ‘Slavery’, in which Seymour Drescher and Paul Finkelman describe slavery ‘as a legal and economic system’ (at 892). The post-colonial critique can also be found in the chapter on ‘Colonialism and Domination’. How exactly, asks Matthew Craven, is the emergence of the European states system connected to the expansion of mercantile empires and the taking of colonial possessions? His argument is that the dynamics of the colonization process were shaped by, and shaped in turn, changing conceptions as to the nature and character of governmental authority (at 864). A detailed analysis reveals a shift in the conceptualization of the colonial rule framed in terms of dominium, to one structured around the idea of imperium. This is visible in the ways in which the technologies of expansion were first articulated in terms of the straightforward acquisition of property (whether original or derivative), before the relations of property became the active object of colonial rule rather than its precondition. ‘Colonialism was not just about acquiring things as property, but about turning things into property’ (at 888). Thus, for Craven, colonialism, imperialism, and capitalism go hand in hand: in the colonies, the rationality of imperium was increasingly organized around the idea of establishing the conditions for the enjoyment of private property and exchange. Such Marxist-inspired argument does not go uncriticized in the Handbook. In his chapter on ‘Eurocentrism in the History of International Law’, Arnulf Becker Lorca regrets that post-colonial historians present international law as a superstructure determined by power. The problem is that they create a ‘blind spot regarding counter-hegemonic uses of international law by non-Western actors’ (at 1054). To remedy that bias, attention should therefore be directed to the ‘hybridization of the legal concepts as they travel from the colonial metropolis and their changing uses in the hands of the colonized’.15 Liliana Obregón goes into that direction in her chapter ‘The Civilized and the Uncivilized’, by showing how international law was appropriated by Latin American Creole elites in the 19th century and used as a force for liberation. In Haiti, the standard of civilization became internalized by former slaves, and then turned upside down to support their anti-colonial project. The 1804 Haitian declaration of independence and the 1805 first constitution thus inverted the civilized/barbarian labelling: ‘the French were described as the “barbarians who have bloodied our land for two centuries” while the Haitians were “a people, free, civilized and independent”’ (at 923). This contrasted with paths taken by other Latin American elites, who were eager to show that they had attained the degree of civilization necessary to enter the ‘community of civilized nations’.16 In the same vein, Jorge Esquirol shows in his chapter on ‘Latin America’ that from the turn of the 20th century and onwards, Latin American scholars – the most vocal one being Alejandro Alvarez – defended the existence of an American international law that was ‘as equally international law as the dominant European version’ (at 563). To be sure, there were disagreements among those scholars: for instance, should the US belong to the group? Is there really a separate American international law or are there simply principles originating in Latin America? Nonetheless, all of them defended a project having in mind the precarious times for Latin America – i.e., the transition from European to US imperialism. ‘Thus’, concludes Esquirol, ‘irrespective of the conceptual difficulties surrounding a particularistic international law, this project reveals a geo-politically meaningful development of legality. It offered a means for addressing both US and European imperialism. It also showcased Latin American statesmen and publicists as equal creators, and enforcers, of international law’ (at 565). This is not the same as examining autochthonous legal vocabularies and dispute-resolution mechanisms. In their contribution (‘Africa North of the Sahara and Arab Countries’), Fatiha Sahli and Abdelmalek El Ouazzani explain in detail the Islamic rules governing war and peace. They analyse North Africa’s relationships with other powers (mainly Christian) from the 16th century and onwards, the strategic character of those relationships, and the legal tools that were used to regulate them. They point to the ‘contribution of Islam to international law’, which is particularly important ‘in the field of the protection of the laws of the religious minorities and the humane treatment of the war prisoners’ (at 405). This kind of study is necessary not because it would show that Islamic countries are as sophisticated as European ones or that ‘they, too, had international law’.17 Instead, as Martti Koskenniemi has written, such studies are needed ‘to illuminate the diversity of human experience and to create critical distance towards the intuitive naturalness of stories we have learned’.18 Such distance can also be created by focussing on the encounter between Europe and the New World ‘as an important, even foundational moment to the discipline itself’.19 Such study would not only show the ways in which Europeans came in contact with (and dominated) the ‘Other’, but would also demonstrate that the native communities were far from being passive or clueless. In his chapter on the ‘Ottoman Empire’, Umut Özsu explores the ambiguities surrounding the legal concept and practice of the ‘capitulations’. It is true that by the late 19th century, capitulations had become tools of Western imperialism. However, these had been mechanisms of governance in the Ottoman Empire, i.e., ‘mechanisms which may have been overlaid with imperial and theological sanctification but which aimed above all to bolster trade, cement alliances, and delimit jurisdictional boundaries in a complex environment’ (at 446). Similarly, in the chapter entitled ‘North American Indigenous Peoples’ Encounters’, Ken Coates highlights the diversity and ‘complexity of the Indigenous-European counter’ (at 789) as it involved indigenous concepts of law and land ownership, military and commercial alliances, as well as formal and informal treaties. We learn that, while the Spanish theologians were disagreeing with respect to the conquest and settlement on native soil, the European powers were concluding treaties with the First Nations – thus treating them as political authorities – while having no problem abrogating or simply ignoring those treaties when needed. This brings me to the quotation with which I started this review. In 2000, Dipesh Chakrabarty, a Bengali historian, published a book that made a central contribution to postcolonial studies, in which he wrote: ‘European thought is at once both indispensable and inadequate in helping us to think through the experiences of political modernity in non-Western nations, and provincializing Europe becomes the task of exploring how this thought … may be renewed from and for the margins’.20 I understand this to mean that international law as a European universalizing project is our iron cage. It may not be possible to think outside it, but it is possible to ‘provincialize’ or to ‘exoticise’ Europe and European laws in order to renew it from and for the margins. Provincializing Europe is something well done in the chapter on ‘Japan’. There, Masaharu Yanagohara gives us the sense that Europe, too, is just a continent with its particular ‘interests and neuroses, wisdom and stupidity’.21 Before its so-called ‘opening’ to the world, Japan was much more concerned with China’s imperial ambition, and Europe appeared only now and then, under the guise of (Dutch) trading partners. From the mid-19th century, Japan started to use the newly encountered international law to further its own domestic agenda, such as to assert its sovereignty over the Ryukyu Islands (against China’s traditional rules). Japan also used international law to conclude ‘unequal treaties’ (at 496) with Asian countries in order to obtain a predominant status in the region. Last but not chapter on can be as an Africa’s contribution to the history of international law through a of the and of their This is a and yet powerful of of as the also that many international in a ‘a sense that and the World are in the international but at the same time a sense of that international law can to an (at This the that there would be a possible to some It also us to think Eurocentrism’. What do I mean by The Oxford Handbook of the History of International is part of the postcolonial in the field of international law It that international law is a European vocabulary and that it has been used as an of colonial expansion and This be or as contributions to the Handbook international law as a European is and to different postcolonial histories have European as ‘the in order to show international law’s implication in the of global this is not the only possible those who to show how international law is in but also how it can to attention should be directed towards other forms of and

Abstract This article focuses on the World Trade Organization’s (WTO) Dispute Settlement Body (DSB) – the diplomatic body, consisting of representatives of WTO members, that administers the dispute settlement system. Focusing on the WTO, the article provides one perspective on the relationship between international tribunals and the political bodies that oversee the governance of such tribunals. Specifically, I argue that the DSB operates as an important ‘voice’ mechanism, which enables members to provide regular feedback to WTO adjudicators, and helps sustain the internal legitimacy of WTO adjudication. However, the DSB can also be used in ways that undermine judicial independence. In short, the DSB is a key site where the tension plays out between WTO adjudicators’ independence from members, and control by, and accountability to, members. The episodes examined in detail to develop this argument are the crisis of a generation ago over amicus curiae briefs, and the ongoing crisis over Appellate Body appointments.

A subset of investor–State arbitrations arise out of circumstances where there is a major backlash by a local population against an investment, and the host State, in responding to such concerns, takes actions, such as cancelling a permit, which prevent the future operations of a foreign investor.3 Such cases raise fundamental questions about the legitimate concerns, rights and responsibilities of local populations affected by investment activities, host State governments and foreign investors.4 The Award in Bear Creek Mining v Peru,5 rendered under the investment chapter of the Canada–Peru Free Trade Agreement,6 is another such dispute. As outlined below, the case concerned Peru’s revocation of an authorization for the foreign investor’s acquisition of concessions for a silver mine, in response to widespread protests. The Award runs to some 300 pages, and this comment will focus on two of its contributions that are of wider relevance. First, the Tribunal considered the relevant standard for determining whether the investor had obtained a social license and, in particular, what was required of the investor when consulting indigenous populations affected by its operations, referring to the international law framework governing the latter issue. Second, the Award is one of the first to apply an investment treaty that included criteria intended to distinguish indirect expropriations from legitimate regulation and a general exceptions clause based on Article XX of the General Agreement on Tariffs and Trade (GATT).7 Both of these types of provisions have been included in many investment treaties over the last decade in an effort to increase States’ policy space, but they are largely untested before arbitral tribunals.8 This case comment will suggest that the Bear Creek Award highlights important ambiguities that remain in relation to such provisions and demand further attention from treaty drafters and arbitrators.

The Southern African Development Community (‘SADC’) Tribunal is one of the major sub-regional courts established by African countries over the past few decades. It was established pursuant to Article 9 (1) Treaty of the Southern African Development Community (‘SADC Treaty’) together with five other original SADC institutions to spearhead regional cooperation and integration in Southern Africa. As set out in Article 16 (1) SADC Treaty, the main purpose of the SADC Tribunal is ‘to ensure adherence to and proper interpretation of the provisions of the SADC Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it’. As such, the SADC Tribunal is the judicial arm of the SADC. The Tribunal has been suspended since 2010 following its landmark ruling against the Republic of Zimbabwe in Mike Campbell (PVT) Ltd and 78 others v. The Republic of Zimbabwe, (‘the Campbell case’). A new Protocol was adopted to reconstitute the Tribunal with limited jurisdiction at the 34 th Summit of SADC Heads of State or Government (‘the Summit’) held in Victoria Falls, Zimbabwe, from 17 to 18 August 2014, but has not yet entered into force (para18 Communique of the 34 th SADC Summit). The suspension of the Tribunal has been plagued by continued reluctance of SADC Member States to sanction Zimbabwe for its blatant noncompliance with the decisions of the Tribunal, and complex legal arguments that have their roots in the poor drafting of the SADC legal instruments.

Several armed conflicts have marked the past two decades in the Democratic Republic of the Congo (DRC). As a result, the DRC is facing an unprecedented humanitarian disaster with the death of hundreds of thousands of people, the large-scale displacement of civilians and the rape of thousands of women, girls and men. These armed conflicts have led to the metamorphosis of the concept of ‘crime’ with the emergence of new forms of sexual violence, particularly the widespread sexual violence used by armed groups as a tactic of war. In response to this avalanche of sexual violence, the DRC has taken a series of legislative measures. It began with the ratification of the Statute of the International Criminal Court (Rome Statute) on 11 April 2002. This was followed by the promulgation of the Military Judicial Code and the Military Criminal Code on 18 November 2002 (MJC and MCC, respectively) criminalizing, inter alia, war crimes, crimes against humanity and genocide. In 2006, the Congolese legislator criminalized various forms of sexual crimes as defined by international law in the Military Penal Code. On 31 December 2015, the Congolese authorities promulgated Law No. 15/022, amending and supplementing the Military Penal Code, for the implementation of the Rome Statute. Through this Law, the legislator has included in the Congolese Ordinary Criminal Code rape and other sexual assaults constituting war crimes, and in some circumstances, crimes against humanity. In terms of prosecutions, around 40 cases of rape classified as war crimes and crimes against humanity have been tried by Congolese military courts, and a few other cases are being investigated. This article seeks to assess the progress made by the DRC in prosecuting rape as a war crime and the challenges to such prosecutions. La République démocratique du Congo (RDC) a été marquée par plusieurs conflits armés au cours des deux dernières décennies. Il en résulte que ce pays est confronté à une catastrophe humanitaire sans précédent avec la mort de centaines de milliers de personnes, le déplacement à grande échelle de civils et le viol de milliers de femmes, de filles et d'hommes. Ces conflits armés ont entraîné une métamorphose du concept de ‘crime’ avec l'émergence de nouvelles formes de violence sexuelle, notamment la violence sexuelle généralisée utilisée par les groupes armés comme tactique de guerre. En réponse à cette avalanche de violences sexuelles, la RDC a adopté une série de mesures législatives. La première fut la ratification du Statut de la Cour pénale internationale (Statut de Rome) le 11 avril 2002. Cette ratification fut suivie par la promulgation du Code judiciaire militaire et du Code pénal militaire le 18 novembre 2002 (respectivement le CMJ et le CCM) qui criminalisent, entre autres, les crimes de guerre, les crimes contre l'humanité et le génocide. En 2006, le législateur congolais a incriminé dans le Code pénal militaire diverses formes de crimes sexuels tels que définis par le droit international. Le 31 décembre 2015, les autorités congolaises ont promulgué la loi no 15/022, modifiant et complétant le Code pénal militaire, pour la mise en œuvre du Statut de Rome. A travers cette loi, le législateur a inclus dans le Code pénal ordinaire congolais les viols et autres agressions sexuelles constitutifs de crimes de guerre, et dans certaines circonstances, de crimes contre l'humanité. En termes de poursuites, une quarantaine de cas de viols qualifiés de crimes de guerre et de crimes contre l'humanité ont été jugés par les tribunaux militaires congolais, et quelques autres cas sont en cours d'instruction. Cet article vise à évaluer les progrès réalisés par la RDC en matière de poursuites pénales pour viol en tant que crime de guerre et les défis auxquels ces poursuites sont confrontées. Verschillende gewapende conflicten hebben de afgelopen twee decennia hun stempel gedrukt op de Democratische Republiek Congo (DRC). Als gevolg daarvan wordt de DRC geconfronteerd met een ongekende humanitaire ramp die gepaard gaat met de dood van honderdduizenden mensen, de grootschalige ontheemding van burgers en de verkrachting van duizenden vrouwen, meisjes en mannen. Die gewapende conflicten hebben geleid tot een metamorfose van het begrip ‘misdaad’ met de opkomst van nieuwe vormen van seksueel geweld, in het bijzonder het wijdverspreide seksuele geweld dat door gewapende groepen als oorlogstactiek wordt gebruikt. Als reactie op die lawine van seksueel geweld heeft de DRC een reeks wetgevende maatregelen genomen. Het begon met de ratificatie van het Statuut van het Internationaal Strafhof (Statuut van Rome) op 11 april 2002, gevolgd door de afkondiging van het militair gerechtelijk wetboek en het militair strafwetboek op 18 november 2002. Daarin worden onder meer oorlogsmisdaden, misdaden tegen de mensheid en genocide strafbaar gesteld. In 2006 heeft de Congolese wetgever verschillende vormen van seksuele misdrijven, zoals omschreven in het internationaal recht, strafbaar gesteld in het militair strafwetboek. Op 31 december 2015 hebben de Congolese autoriteiten wet nr. 15/022 tot wijziging en aanvulling van het militair strafwetboek uitgevaardigd, met het oog op de uitvoering van het Statuut van Rome. Met die wet heeft de wetgever verkrachting en andere vormen van seksueel geweld die te beschouwen zijn als oorlogsmisdaden, en in sommige omstandigheden misdaden tegen de mensheid, in het gewone Congolese Wetboek van Strafrecht opgenomen. Wat vervolging betreft, zijn ongeveer 40 gevallen van verkrachting die als oorlogsmisdaden en misdaden tegen de mensheid werden aangemerkt, door de Congolese militaire rechtbanken berecht, en enkele andere gevallen worden momenteel onderzocht. Deze studie heeft tot doel na te gaan welke vooruitgang de DRC heeft geboekt bij de vervolging van verkrachting als oorlogsmisdaad en voor welke uitdagingen dergelijke vervolgingen staan. Varios conflictos armados han dejado huella en las dos décadas pasadas en la República Democrática del Congo (RDC). A resultas de ello, la RDC se está enfrentando a un desastre humanitario sin precedentes con la muerte de cientos de miles de personas, desplazamiento de civiles a gran escala y la violación de miles de mujeres, niñas y hombres. Estos conflictos armados han llevado a la metamorfosis del concepto de ‘crimen’ con la aparición de nuevas formas de violencia sexual, en particular el uso generalizado de la violencia sexual por grupos armados como táctica de guerra. En respuesta a esta avalancha de violencia sexual, la RDC ha adoptado una serie de medidas legislativas. Todo comenzó con la ratificación del Estatuto de la Corte Penal Internacional (Estatuto de Roma) el 11 de abril de 2002. A esto siguió la promulgación del Código Judicial Militar y del Código Penal Militar el 18 de noviembre de 2002 (Código Judicial Militar y Código Penal Militar, respectivamente), penalizando, entre otros, los crímenes contra la humanidad y el genocidio. En 2006, el legislador congoleño introdujo en el Código Penal Militar varias modalidades de crimen sexual tal y como se definen en el Derecho Internacional. El 31 de diciembre de 2015, la autoridades congoleñas promulgaron la Ley Núm. 15/022, reformando y complementando el Código Penal Militar, con objeto de implementar el Estatuto de Roma. A través de esta ley, el legislador ha tipificado en el Código Penal Común la violación y otros ataques sexuales que constituyen crímenes de guerra y, en algunas circunstancias, crímenes contra la humanidad. En términos de procedimientos instruidos, cerca de 40 casos de violación tipificada como crímenes de guerra y crímenes contra la humanidad han sido tramitados por los tribunales militares congoleños, y varios casos más continúan siendo objeto de investigación. Este estudio busca valorar el progreso de la RDC en la persecución de la violación como crimen de guerra y los retos a los que se ha tenido que hacer frente en dicha tarea. Gli ultimi due decenni della Repubblica Democratica del Congo (RDC) sono stati segnati da diversi conflitti armati. Di conseguenza, la RDC sta affrontando un disastro umanitario senza precedenti con la morte di centinaia di migliaia di persone, lo sfollamento di civili su larga scala e lo stupro di migliaia di donne, ragazze e uomini. Questi conflitti armati hanno portato alla metamorfosi del concetto di ‘crimine’ con l'emergere di nuove forme di violenza sessuale, in particolare la diffusa violenza sessuale usata dai gruppi armati come tattica di guerra. In risposta a questa valanga di violenza sessuale, la RDC ha adottato una serie di misure legislative. È iniziato tutto con la ratifica dello Statuto della Corte penale internazionale (Statuto di Roma) l'11 aprile 2002. A ciò è seguita la promulgazione del Military Judicial Code and the Military Criminal Code il 18 novembre 2002 (rispet­tivamente Codice giudiziario militare e Codice penale militare), che hanno criminalizzato, tra l'altro, crimini di guerra, crimini contro l'umanità e genocidio. Nel 2006, il legislatore congolese ha definito come crimini varie forme di reati sessuali così come definito dal diritto internazionale nel Codice Penale Militare. Il 31 dicembre 2015 le autorità congolesi hanno promulgato la Legge n. 15/022, che modifica e integra il Codice Penale Militare, per l'attuazione dello Statuto di Roma. Attraverso questa legge, il legislatore ha incluso nel Codice penale Ordinario congolese lo stupro e altre aggressioni sessuali definiti crimini di guerra e, in alcune circostanze, crimini contro l'umanità. In termini di procedimenti penali, circa 40 casi di stupro classificati come crimini di guerra e crimini contro l'umanità sono stati processati dai tribunali militari congolesi e alcuni altri casi sono oggetto di indagine. Questo studio cerca di valutare i progressi compiuti dalla RDC nel perseguire lo stupro come crimine di guerra e l’impegno in tali procedimenti penali. Mehrere bewaffnete Konflikte haben die ver

Recent years have seen increasing references to jus cogens in the case law of several international and even domestic courts. Despite significant discussion in the literature, it remains difficult to identify the real consequences of this trend. The chapter on jus cogens in Antonio Cassese’s last book looks for operative means of enhancing jus cogens. The three proposed paths are not necessarily realistic, but to what extent do they need to be? The hypothesis here is that perhaps it is the act of reflection that sustains the notion of jus cogens ̶and therefore keeps jus cogens itself alive and able to perform its rhetorical function.

Weak sub-Saharan African states use international law and its institutions to legitimate their actions and delegitimate their internal enemies. In this essay, I argue that during internal armed conflicts, African states use international criminal law to redefine the conflict as international and thereby rebrand domestic political opponents as international criminals/enemies who are a threat to the entire community. This in turn sets the stage for invoking belligerent privileges under international humanitarian law (IHL).

Article Comparing Insider Trading in the United States and in the European Union: History and Recent Developments was published on January 1, 2015 in the journal European Company and Financial Law Review (volume 11, issue 4).

Abstract This article analyses the various ways in which investment law raises questions of change. It distinguishes between changes in international investment norms, and changes in a host state’s regulatory system which is subject to the control of such norms, and explains how these different manifestations of change relate to the distinct yet interrelated issues of interpretation and application. The article explains why, given features of the contemporary investment regime, on questions of interpretation, concerning the content of international investment norms, arbitrators operate within wider processes of law-development over which states, as treaty masters, also exercise significant influence. In contrast, arbitrators dominate the process of applying international investment norms to particular investor-state disputes to determine whether changes in a host state’s regulatory system breach applicable investment norms. This claim is demonstrated in relation to the two most prominent investment treaty standards: fair and equitable treatment, and the protection against indirect expropriation.

Ruiz-Fabri Hélène. Genèse et disparition de l'État à l'époque contemporaine. In: Annuaire français de droit international, volume 38, 1992. pp. 153-178.

BACKGROUND: In October 2018, the Conference of the Parties of the Framework Convention on Tobacco Control (FCTC or Convention) adopted its first decision on novel and emerging tobacco products, including heated tobacco products (HTPs). The decision remains ambiguous, e.g. by making a distinction between tobacco sticks and HTP devices. Against this background, the article seeks to answer two interrelated questions: whether and to what extent HTPs are covered by the FCTC, and whether regime provided by the Convention is suitable for their regulation. RESULTS: HTPs need to be classified under the FCTC as tobacco products. The distinction made by the Conference of the Parties between sticks and devices leads however to unsatisfactory results as it creates loopholes in tobacco control standards existing at the international level. A better approach, as argued in this article, is to conceptualize the notion of 'tobacco products' in functional terms as a combination of both a device and stick. While subjecting HTPs to all FCTC disciplines is, in light of our current scientific knowledge, a rational approach, such classification can be modified in the future once a sufficient amount of new evidence on their risk profile is collected. Any decision on the optimal regulatory model for HTPs will need to take into account not only health risks and potential benefits for individual users, but also the specific systemic concerns (e.g. HTPs as a gateway product). The state of scientific research is however not the only factor that will determine the fate of HTPs under the Convention. What is equally important is a conceptualization of the FCTC's objectives. If a complete eradication of the tobacco epidemic is the ultimate goal, reduced levels of risk may not be enough to justify the different (i.e. more lenient) regulatory regime for HTPs. CONCLUSIONS: The Conference of the Parties should clarify the definition of tobacco products in light of recent changes in the market. When designing the regulatory regime for HTPs under the FCTC in the future, one has to consider not only scientific evidence but also pay attention to the objective of the Convention (or more generally to the values that underlie the current tobacco control paradigm).

This article explores the contents and consequences of the Achmea judgment recently given by the European Court of Justice (6 March 2018, case C-284/16). In its first part, the article analyses the judgment from a European point of view. It notes that Achmea is primarily concerned with the autonomy of the EU legal order in international dispute resolution and only secondarily with investment arbitration. The judgment seamlessly ties in with the Court’s Opinion 2/13 on the Accession of the EU to the European Convention of Human Rights. In its second part, the article assesses the consequences of the judgment for current and future investment dispute resolution. It argues that (i) investment arbitration is over for intra-EU Bilateral Investment Treaties and (ii) most likely also for intra-EU disputes under the Energy Charter Treaty; (iii) the European Commission must be careful not to jeopardise the supremacy of the ECJ in interpreting the EU law when concluding future international dispute resolution agreements; (iv) the same holds true regarding dispute resolution under the UK Withdrawal Agreement when negotiating the Brexit.