Private law analogies in international law

This monograph, which the author submits as a Thesis for LL.D. degree of the University of London, deals with a controversial subject. In fact, the problem of application of private law in international law is so controversial that in the course of the writing of this thesis doubts were frequently arising in the mind of the author whether the subject ought to be dealt with in & University dissertation. These doubts have rather Increased than diminished since he decided not to confine himself a a mere registration of opinions of publicists and writers of text-books, but to examine whether the current opinion is in accordance with the practice of states, and whether it has been really incorporated into the science of international law

1962 Otterbein College vs Kenyon College Football Program

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Patterns of avoidance: Political questions before international courts

International courts (ICs) have found themselves dealing with issues that are 'political' in nature. This paper discusses the techniques of avoidance ICs have developed to navigate such highly political or sensitive issues. The first part discusses some of the key rationales for avoidance. Drawing on the discussion of the political question doctrine in US constitutional law, it shows how ICs may justify avoidance on both principled and pragmatic grounds. It then discusses the different types of avoidance strategies employed by ICs, based on examples from the Court of Justice of the European Union, the International Court of Justice and the East African Court of Justice. ICs are rarely upfront about avoidance strategies. Rather, ICs tend to avoid cases in a more subtle fashion, relying on procedural rules to exclude a case, or by resolving the dispute in a way that avoids the most politically sensitive questions and controversies

Overcoming the “Logic of Exception”: A Critique of the UN Security Council’s Response to Environmental Damage from the 1990–91 Gulf War

This paper examines the UN Security Council’s [UNSC] response to the environmental impact of the 1990–91 Gulf War and its relevance to ongoing debates on environmental protection during armed conflict. With Resolution 687/91, the UNSC referred to “environmental damage and depletion of natural resources” in the context of war reparations, and established the UN Compensation Commission [UNCC] to process environmental claims. Whilst this is often hailed as a success story, this paper raises questions about certain dimensions of the UNCC: the choice of the applicable law; the decision-making process, particularly in relation to causation and remedies; and its punitive/biased nature. It argues that the successful outcome of the environmental compensation regime cannot be separated from the UNCC’s exceptional application of international legal norms. By drawing attention to this “logic of exception”, I suggest that alternative responses, more attentive to the dynamics of contemporary conflicts and their multiple environmental impacts, should be imagined

The ambivalent shadow of the pre-Wilsonian rise of international law

The generation of American international lawyers who founded the American Society of International Law in 1906 and nurtured the soil for what has been retrospectively called a “moralistic legalistic approach to international relations” remains little studied. A survey of the rise of international legal literature in the U.S. from the mid-19th century to the eve of the Great War serves as a backdrop to the examination of the boosting effect on international law of the Spanish American War in 1898. An examination of the Insular Cases before the US Supreme Court is then accompanied by the analysis of a number of influential factors behind the pre-war rise of international law in the U.S. The work concludes with an examination of the rise of natural law doctrines in international law during the interwar period and the critiques addressed.by the realist founders of the field of “international relations” to the “moralistic legalistic approach to international relation

The Margin of Appreciation Doctrine: A Low-Level Institutional View

The paper argues that the margin of appreciation (MoA) doctrine of the European Court of Human Rights (ECtHR, or Court), should be understood as, inter alia, an underenforcement doctrine, according to which Convention rights should not be applied to their full conceptual limits. Underenforcement is justified by institutional considerations relating to the Court's role and competence. Although institutional considerations have been theorised normatively, the paper claims that ‘low-level’ empirical inquiry into the comparative institutional competence of different decision makers across the Council of Europe is critical in explaining MoA. Such comparative empirical analysis ties shared institutional responsibility and subsidiarity with certain traits of decision makers when determining Convention rights. In this context, the paper briefly compares the decision making abilities of different institutions. It concludes by stressing that under certain circumstances the Court can be worse placed than national authorities to decide on violations of Convention rights. This is corroborated by the Court's case-law concerning Convention rights impinging on the economic and social policies of States Parties