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Introduction to the Symposium on Incidental Jurisdiction 附带管辖权专题讨论会介绍
AJIL Unbound Pub Date : 2022-06-20 DOI: 10.1017/aju.2022.25
J. Devaney
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引用次数: 0
Incidental Jurisdiction in Human Rights Litigation: Surprising Absence and Rival Techniques 人权诉讼中的附带管辖权：令人惊讶的缺席与竞争技巧
AJIL Unbound Pub Date : 2022-06-20 DOI: 10.1017/aju.2022.28
Lea Raible
{"title":"Incidental Jurisdiction in Human Rights Litigation: Surprising Absence and Rival Techniques","authors":"Lea Raible","doi":"10.1017/aju.2022.28","DOIUrl":"https://doi.org/10.1017/aju.2022.28","url":null,"abstract":"Human rights courts and bodies do not rely on the concept of incidental jurisdiction. As far as I am aware, they never have. Given that these courts and bodies are in many ways typical examples of international courts, this is at first glance surprising. However, a closer look suggests that human rights bodies employ rival techniques to tackle the same problem to which incidental jurisdiction is supposedly responding. This essay sets out, first, that there is nothing unique about the institutional set up of human rights courts and human rights bodies in international law that might explain the absence of incidental jurisdiction. Second, I offer a plausible reconstruction of this absence. I argue that it is not only a rational response to the particular demands of human rights litigation, but that it may even be normatively preferable. The tension between dispute settlement and state consent is modified and heightened in international human rights law; this justifies treating incidental questions with the weight usually attached to the main issues of a case by turning them into questions of treaty interpretation. Third, I illustrate these rival techniques in two areas: jurisdiction in international human rights law, and cases involving armed conflicts.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49006564","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Incidental Jurisdiction in International Adjudication and Incidental Determinations by International Organizations 国际裁判中的附带管辖权与国际组织的附带裁定
AJIL Unbound Pub Date : 2022-06-20 DOI: 10.1017/aju.2022.30
Peter Tzeng
{"title":"Incidental Jurisdiction in International Adjudication and Incidental Determinations by International Organizations","authors":"Peter Tzeng","doi":"10.1017/aju.2022.30","DOIUrl":"https://doi.org/10.1017/aju.2022.30","url":null,"abstract":"International courts and tribunals have developed two criteria for the exercise of incidental jurisdiction: necessity and ancillarity. Yet the question of whether to make an incidental determination is not unique to the adjudicatory context. International organizations sometimes confront it as well. And their practice in dealing with this question suggests that the criteria of necessity and ancillarity alone are insufficient for assessing whether an incidental determination should be made.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41306491","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Incidental Jurisdiction in Investment Treaty Arbitration and the Question of Party Consent 投资条约仲裁中的附带管辖权与当事人同意问题
AJIL Unbound Pub Date : 2022-06-20 DOI: 10.1017/aju.2022.29
Relja Radović
{"title":"Incidental Jurisdiction in Investment Treaty Arbitration and the Question of Party Consent","authors":"Relja Radović","doi":"10.1017/aju.2022.29","DOIUrl":"https://doi.org/10.1017/aju.2022.29","url":null,"abstract":"Arbitral tribunals in investment treaty arbitration have not contributed much to the theoretical development of the concept of incidental jurisdiction, even though they have occasionally exercised it in practice. One possible explanation for their apparent reluctance to make explicit and greater use of the concept of incidental jurisdiction is the tendency to adopt a strict approach to jurisdiction governed by party consent. In this essay, I argue that incidental jurisdiction is not in tension with the consensual foundations of international jurisdiction when it is viewed as one inherent power of international courts and tribunals. Key to this argument is that incidental determinations are not binding, and therefore do not need to fall within party-defined jurisdictional limits.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45086233","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Article 2(4) and Authoritarian International Law 第2(4)条和专制国际法
AJIL Unbound Pub Date : 2022-05-23 DOI: 10.1017/aju.2022.19
Tom Ginsburg
{"title":"Article 2(4) and Authoritarian International Law","authors":"Tom Ginsburg","doi":"10.1017/aju.2022.19","DOIUrl":"https://doi.org/10.1017/aju.2022.19","url":null,"abstract":"In 1970, Thomas Franck asked a rhetorical question of enduring significance: Who Killed Article 2(4)? The reference is to the provision of the United Nations Charter that requires all member states to refrain “from the threat or use of force against the territorial integrity or political independence of any state.” Vladimir Putin's gambit in Ukraine, conducted with the rhetorical purpose of eliminating the country as an independent state, is the latest in a series of events that periodically cause analysts to bemoan the end of the post-World War II international order. Will this time be different? Will it mark a definitive change in international law? This short essay will argue that, bloody as the Ukraine conflict has been, the immediate response has been to reinforce rather than reject traditional norms about sovereignty and territorial integrity. At the same time, the invasion and other states’ reaction to it illustrate both the character of, and limits to, authoritarian use of international law.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49061506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 3
Online Propaganda, Censorship and Human Rights in Russia's War Against Reality 俄罗斯反现实战争中的网络宣传、审查和人权
AJIL Unbound Pub Date : 2022-05-23 DOI: 10.1017/aju.2022.24
D. Kaye
{"title":"Online Propaganda, Censorship and Human Rights in Russia's War Against Reality","authors":"D. Kaye","doi":"10.1017/aju.2022.24","DOIUrl":"https://doi.org/10.1017/aju.2022.24","url":null,"abstract":"Russia's invasion of Ukraine has exposed the capriciousness of state and corporate power over human rights online. Events since the invasion have demonstrated the coercive power of the state over online expression, privacy, and public protest. Russia's longtime “war against reality” has deepened in its repression and is dependent on the raw power of criminal law enforcement, surveillance by security forces, censorship by its media regulator, and legal and extralegal demands against internet platforms. Without drawing an equivalence, the European Union has imposed a comprehensive ban on Russian state-controlled media outlets, encouraged in part by the Ukrainian government, whose moral authority under the circumstances has been particularly strong. Notwithstanding state power over them, technology companies continue to be capable of causing or mitigating, if not preventing, human rights harms. Foreign companies and local partners have heroically maintained internet access in Ukraine and resisted Russian censorship and propaganda, the latter resulting in the blocking of key internet platforms by Russia. It is the latest chapter in the struggle among governments, companies, and individuals to control online space. But it is also an opportunity for reflection, for while the Kremlin has flouted its international obligations, governments and companies committed to human rights law cannot so behave. They should exercise their power over public space according to transparent rule of law standards of non-discrimination, legality, necessity, and legitimacy. A headlong rush to Russia-specific rules and enforcement, unmoored from public articulation of human rights standards, risks corroding the global normative framework for fundamental rights online.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56957983","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
International Law After Ukraine: Introduction to the Symposium 乌克兰事件后的国际法:研讨会导言
AJIL Unbound Pub Date : 2022-05-23 DOI: 10.1017/aju.2022.18
E. Chachko, K. Linos
{"title":"International Law After Ukraine: Introduction to the Symposium","authors":"E. Chachko, K. Linos","doi":"10.1017/aju.2022.18","DOIUrl":"https://doi.org/10.1017/aju.2022.18","url":null,"abstract":"The Russian invasion of Ukraine has brought on unspeakable suffering. It has already injured and killed scores of people. It has displaced millions who now face an uncertain future. It raises the specter of all-out cyber war that threatens to draw other countries into the conflict. It is raging not only on the ground in Ukraine, but also on internet platforms where disinformation has spread. It tests the resilience of international partnerships and alliances. Beyond these immediate implications, the Russian attack on Ukraine also violates the prohibition on aggressive use of force, a foundational principle of the post-World War II international order. Facing these alarming prospects, many are pessimistic about what the war in Ukraine may portend for the future of international law and international relations. Surprisingly, however, some of the bleakest predictions have not yet been realized. Quite the contrary. We argue that there is a lot to be optimistic about when it comes to the role of international law, partnerships and norms in this conflict.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43790513","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 3
An Unlawful War 非法战争
AJIL Unbound Pub Date : 2022-05-23 DOI: 10.1017/aju.2022.23
Adil Ahmad Haque
{"title":"An Unlawful War","authors":"Adil Ahmad Haque","doi":"10.1017/aju.2022.23","DOIUrl":"https://doi.org/10.1017/aju.2022.23","url":null,"abstract":"Russia's invasion of Ukraine violated the prohibition of force contained in the United Nations Charter and the peremptory norm of general international law prohibiting aggression. The invasion was not an exercise of individual or collective self-defense, or a humanitarian intervention, as Russia variously claimed. The United Nations General Assembly rejected all such claims when 141 member states voted to deplore “in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter” as well as “the involvement of Belarus in this unlawful use of force against Ukraine.” This essay traces the legal implications of Russia's act of aggression, and its violations of international humanitarian law, through international criminal law, international human rights law, and the law of state responsibility. It argues that Russia violates the human rights of every person it kills, and that states are permitted and may be required to provide military assistance to Ukraine and impose economic sanctions on Russia. As Ukraine fights for its survival as an independent state, international law remains both a moral guide and a strategic asset.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47954035","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 8
Ukraine, Cyberattacks, and the Lessons for International Law 乌克兰，网络攻击，以及国际法的教训
AJIL Unbound Pub Date : 2022-05-23 DOI: 10.1017/aju.2022.20
K. Eichensehr
{"title":"Ukraine, Cyberattacks, and the Lessons for International Law","authors":"K. Eichensehr","doi":"10.1017/aju.2022.20","DOIUrl":"https://doi.org/10.1017/aju.2022.20","url":null,"abstract":"Russia's invasion of Ukraine has put to the test theories about how cyberattacks fit into conventional war. Contrary to many expectations, cyber operations appear to have played only a limited role in the initial stages of the invasion, prompting competing theories and rampant speculation about why. Although written while the conflict continues, this essay considers how either of two broad explanations for the limited role of cyberattacks to date—that Russia's attempted cyberattacks were thwarted or that Russia chose not to deploy them widely—challenges conventional wisdom about cybersecurity. The essay concludes by suggesting that one lesson international lawyers should draw from the current conflict is the urgent need to clarify and enforce international rules not just for the rare high-end destructive or widely disruptive cyber operations, but also for lower-level operations that have proven more consistently problematic, both in Ukraine and elsewhere. Clarifying such rules could help to manage escalation risk now and in the future, even if such rules—like the most venerable international law prohibitions that Russia's invasion has violated—do not necessarily restrain behavior directly.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42535826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Ukrainians in Flight: Politics, Race, and Regional Solutions 逃亡中的乌克兰人:政治、种族和地区解决方案
AJIL Unbound Pub Date : 2022-05-23 DOI: 10.1017/aju.2022.22
Jaya Ramji-Nogales
{"title":"Ukrainians in Flight: Politics, Race, and Regional Solutions","authors":"Jaya Ramji-Nogales","doi":"10.1017/aju.2022.22","DOIUrl":"https://doi.org/10.1017/aju.2022.22","url":null,"abstract":"The situation of Ukrainians fleeing the Russian invasion exemplifies, as the organizers of this symposium note, both a shock to the international order and a powerful international response. Europeans, and Global North states more broadly, have welcomed Ukrainians with a generosity that sits in stark contrast to their treatment of the vast majority of contemporary refugees. This exceptional response demonstrates a key gap in the legal architecture, namely the absence of an international agreement on shared responsibility for hosting refugees. It also highlights a substantive shortcoming in international refugee law: its failure to protect most people fleeing armed conflict. In contrast, regional law from Africa and Latin America has for some time extended refugee protection to individuals escaping generalized violence. Beyond the substantive law, in many cases, regional protection is a preferable option for individuals fleeing violent conflict. In addition to these structural and substantive concerns, the exceptionally rapid and generous response to the Ukrainians demonstrates the deep politicization of international refugee policy and highlights the invidious role of race in the international legal order.","PeriodicalId":36818,"journal":{"name":"AJIL Unbound","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43631022","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
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