The authority of states to use names in international law and the Macedonian affair: Unilateral entitlements, historic title, and trademark analogies

Copyright @ 2009 Foundation of the Leiden Journal of International Law.The international legal entitlement by which a state constitutionally designates its name, or a province therein, involves a unilateral act. Where, however, another state wishes to choose the same appellation, as is the case with the former Yugoslav Republic of Macedonia (FYROM), the matter can only be resolved by reference to the first user and the maxim prior in tempore potior in jure. The first user must provide evidence of continuous use and of protest in those cases where the same appellation was appropriated by a third state. Under such circumstances the entitlement becomes exclusive, rather than concurrent, because the prior user may be said to possess a sound historic title, such that has been recognized by international judicial bodies to determine acquisition of territory, effective administration, historic bays, and so on. The exclusivity of the entitlement is further reinforced by analogy with general principles derived from the law of trademarks. At a practical level, the application of the international law of geographical indications clearly demonstrates that the designation ‘Macedonia’ cannot be used for a significant number of products originating in FYROM, since the Greek province of Macedonia has for a long time branded and registered such products. This will create insurmountable problems for producers in FYROM when they try to brand their goods under the country's constitutional name. A change of name, particularly through the compromisory use of a compound, would alleviate legal, political, and financial concerns

Bilateral Delimitation of the Caspian Sea and the Exclusion of Third Parties

© Koninklijke Brill NV, Leiden, 2011This article discusses the position of the littoral States of the body of water known as the Caspian Sea (hereinafter ‘the Caspian’), particularly on the basis of their numerous bilateral treaties and unilateral statements of action, with respect to the legal status and sui generis regimes of the Caspian. It is argued that these States have excluded the possibility that the Caspian be equated for legal purposes to a sea, but they have, nonetheless, employed legal formulae borrowed from the international law of the sea in order to delimit their respective maritime zones and other entitlements. The ambit of these rights is sketchy and they do not conclusively cover the entirety of inter-State relations in the Caspian. There is an urgent need for the adoption of a multilateral convention in order to remedy these gaps, if for no other reason than for the sake of investor confidence and the avoidance of future disputes

The emergence of the intergovernmental trust in international law

This is a pre-copyedited, author-produced PDF of an article accepted for publication in the British Yearbook of International Law following peer review. The definitive publisher-authenticated version is available online at the link below.Intergovernmental trust funds are vehicles set up mainly to advance developmental objectives. They are composed of capital contributed largely by states. The management of the capital and the objectives of the trust are assigned to a trustee, usually an international organization, such as the UN or the World Bank. The practice of the trusts surveyed in this article unequivocally suggests that the intention of the two principal parties to the trust relationship (i.e. donor and trustee) is to transfer ownership of the trust’s assets to the trustee. The latter’s responsibility is restricted to investing and distributing the trust’s assets to the identified beneficiaries. The understanding is that neither the donors nor the trustee is liable against third parties in respect of any unlawful act committed in connection to the donation or the disbursement of funds. The absolute character of this extra-contractual limitation is dismissed in this article, given that despite the charitable or benevolent nature of the trust’s aims, the disbursement of funds under certain circumstances may be injurious to the interests of states or the international community

United Nations employment law and the causes for its failed senior female appointments record

This is the author's final version of the article. The final publication is available from the link below. Copyright © Koninklijke Brill NV, Leiden, 2009.No abstract available

Saudi law as lex arbitri: Evaluation of Saudi arbitration law and judicial practice

Copyright © 2009 Kluwer Law InternationalDisputes settled in Saudi Arabia, or which otherwise contain Saudi elements, are governed by the Kingdom’s lex arbitri, which requires that not only the arbitration clause and compromis be submitted to a designated competent authority for approval, but that the proceedings be supervised by said competent authority throughout their duration, save where conflict of laws rules permit the parties to refer to a foreign jurisdiction. There is no clear line of authority between contemporary Saudi arbitration law and Hanbali arbitral jurisprudence. Equally, the decisions of the arbitral governing authority (Diwan), although important, does not lend itself formally to stare decisis. Our analysis has demonstrated that this Hanbali corpus of law is in fact more flexible than Saudi law, particularly on the ground of interpretative techniques. This finding should dismiss the notion that Hanbalism is an archaic and backward-looking institution

Transnational talaq (divorce) in english courts: law meets culture

English courts consider the validity of a talaq obtained abroad on the basis of the lex matrimonii, without examining whether the circumstance of the divorce, both factual and legal, offend English public policy. An anthropological inquiry into talaq obtained in most Muslim nations reveals that androcentric culture – as opposed to religious prescription as such – largely distorts the Koranic vision of this institution. This author suggests that English courts and the scholarly/religious community should entertain the notion of the contractual nature of nikah (marriage) in order to assess the consequences of the talaq. If a nikah is entered into without the wife’s unequivocal consent or under duress from family members then, as a contract, it may be declared voidable by the courts; the wife, however, would retain the right to seek redress from such a voidable contract. Moreover, besides comity and reciprocity, there is no other legal impediment as to why English courts cannot employ the Human Rights Act to counter foreign talaq obtained in violation of the wife’s fundamental human rights. This is particularly so where the wife repudiates the application of her personal law in favour of English family law, provided that this is done in a manner that does not expose her to accusations of apostasy

The anthropological dimension of international crimes and international criminal justice

The enforcement of norms involves a series of objective actions, in the sense that what is at stake is not the perspective of the judge, the prosecutor, the accused or the victim as to the appropriateness and legitimacy of the relevant law. On the contrary, subjectivity should play no role in the administration of criminal law and the entire criminal justice system operates in such a way as to avoid the infusion of personal biases. This, of course, is welcome because the law is already publicly available and hence any personal views of the judge or the prosecutor would violate the principle against retroactivity. Hence, this chapter attempts to explain why a departure is necessary in order to understand the particular context of societies in conflict and the social interactions inherent therein. For a very long time, international crimes have been assessed solely on the basis of the norms regulating armed conflict and criminal conduct, absent a thorough examination of the social and cultural context within which the relevant actors existed. However, what is different between the perspective of culture and society provided by anthropology as opposed to other social sciences is its particular vantage point; that is, its view of society and culture from the point of view of the direct participants under observation. The anthropologist is interested in the way that his subjects view family, lineage, religion, work, socialisation and everything else that makes them who they are and behave in the way they do. It is therefore no accident that the term cultural relativism, which is so prevalent in human rights discourse, originated in anthropology but possessed from the outset a very different meaning. Boas, who first conceived but did not coin the term, was dissatisfied with evolutionist theories of his time, which viewed some civilisations as higher or superior to others. To him cultural relativism was a method of examining cultural variation free from prejudice. Given that prejudice is inherent in all observation of the external world, Boas sought to see the world from the eyes of the informants, or natives (the term is not used pejoratively). It is only when one possesses a good enough understanding of the lives of others that one is legitimised to offer moral judgement against them and, in the case at hand, to apply criminal sanctions in a just and equitable manner

Introduction: An interdisciplinary criminology of international criminal law

Whereas the fusion of international criminal law with other disciplines is much more obvious in the context of academic research, principally because of the inroads made by non-legal scholars, the application of these disciplines to international criminal proceedings is rare. One explanation for this is the practical function of international tribunals whose role is to dispense justice to ‘real’ people. As a result, and given the tight deadlines within which tribunals must process a huge amount of evidence and conduct trial proceedings, they may well claim that they do not have the luxury of experimenting with other disciplines. If this was indeed a valid explanation, tribunals could very well make use of the vast existing literature-as is the case with the reliability of traumatised eye witnesses1-in order to make persuasive arguments concerning the pitfalls of testimony provided by those directly affected by hostilities and violent crimes.2 Equally, the tribunals could apply indisputable findings from the natural and medical sciences demonstrating the stresses on human physiology arising from combat. Explanations for the absence of interdisciplinarity in international trials should clearly be sought elsewhere. The judicial chambers of international criminal tribunals ultimately validate and dictate in what manner the prosecution and defence will present their evidence, including the methods by which such evidence will be presented. By way of illustration, if the judges of a particular tribunal encouraged the application of neuroscience in order to ascertain the mental condition of those claiming exculpatory defences (e.g., duress) then no doubt all future litigants would hire the assistance of neuroscientists and relevant legal arguments would depend on scientific data. In this manner, and in that particular context, the law's construction would be made dependent on extra-legal considerations. As a result, the dynamics of the parties’ arguments would shift from legal to extra-legal. At present, such a shift is a fiction in international criminal proceedings (with, it has to be said, some exceptions), but not in other fields of legal inquiry. Neuroscience, for example, plays a central role in the application of an infant's attachment to its parents and the family courts of several nations attribute great significance to attachment theory in their determination of custody and visitation rights

The pitfalls of lis pendens in transnational matrimonial jurisdiction disputes before English courts

Brussels IIbis applies the lis pendens and habitual residence rules in an inflexible manner that gives rise to injustices and in many cases harms the children’s best interests. Torpedo suits are intended to frustrate ongoing family ADR procedures as well as criminal investigations against a parent or spouse for offences related to parental responsibility and the marital relationship. Where petitions involve actions for divorce and parental responsibility the courts do not first seek to ascertain the habitual residence of the children. In practice, English courts focus on the habitual residence of the respondent parent as a means of enforcing the lis pendens rule. Justice requires that judges assume a more active role by applying discretional stays in favour of glaringly appropriate jurisdictions. Brussels IIbis should not be construed contrary to fundamental principles of justice

ORACLES ON FAULTS: A PROBABLE LOCATION OF A “LOST” ORACLE OF APOLLO NEAR OROVIAI (NORTHERN EUBOEA ISLAND, GREECE) VIEWED IN ITS GEOLOGICAL AND GEOMORPHOLOGICAL CONTEXT

At a newly discovered archaeological site at Aghios Taxiarches in Northern Euboea, two votive inscribed stelae were found in 2001 together with hellenistic pottery next to ancient wall ruins on a steep and high rocky slope. Based on the inscriptions and the geographical location of the site we propose the hypothesis that this is quite probably the spot where the oracle of “Apollo Selinountios” (mentioned by Strabo) would stand in antiquity. The wall ruins of the site are found on a very steep bedrock escarpment of an active fault zone, next to a hanging valley, a high waterfall and a cave. The geomorphological and geological environment of the site is linked directly to the regional geodynamical context of Central Greece, a region of tectonic turmoil throughout the Pleistocene and Holocene, characterised by distinct landscapes produced by the activity of active fault zones, intense seismicity, and in part, volcanism and hydrothermal activity. The geomorphological and geological similarities of the Ag. Taxiarches site with those of the oracle at Delphi, seem to provide further support to the hypothesis that the former site can well be that of an ancient oracle, given the recently established connections between the geological environment at Delphi and Apollo’s oracle there. Definitive verification of our hypothesis can only be obtained by further, detailed archaeological study, whereas geological/geomorphological, geochemical, and geochronological studies would be necessary to clarify the connection that the cave lying next to the wall remains may had with the site’s function