Leiden Journal of International Law最新文献

{"title":"Coming to terms with the SDGs: A perspective from legal scholarship","authors":"Jaye Ellis, Dylan Edmonds","doi":"10.1017/S0922156522000838","DOIUrl":"https://doi.org/10.1017/S0922156522000838","url":null,"abstract":"Abstract The Sustainable Development Goal’s (SDG) blueprint to global sustainability exemplifies the global governance trend towards the displacement of law by indicators. Indicators purport to produce objective measurement and comparison, a desirable trait for international public authorities that struggle to bolster the legitimacy of environmental and sustainability norms. This paper adopts a pragmatic approach to indicators by taking seriously their limitations, weaknesses, and dangers, but also their potential contributions to international sustainability objectives. We explore a reframing of the relationship between law and indicators in complementary, not adversarial, terms. Several examples of this complementarity are explored, including the potential use of the SDGs for evaluating the instrumental effectiveness of legal regimes, as well as the ways that international sustainability law supplements the SGDs by providing legal ramifications for violations of state-specific obligations. Finally, we argue that law and legal normativity make invaluable contributions to international environmental and sustainability governance, contributions that metrics and other managerial and technocratic forms of governance cannot make.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"36 1","pages":"251 - 271"},"PeriodicalIF":1.5,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45977394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Developments in Canada on business and human rights: One step forward two steps back","authors":"Penelope Simons","doi":"10.1017/S0922156522000784","DOIUrl":"https://doi.org/10.1017/S0922156522000784","url":null,"abstract":"Abstract Unlike its European counterparts, Canada appears to remain firmly entrenched in a soft approach to ensuring that Canadian extractive companies respect human rights abroad. Canada’s powerful extractive industry has been very successful in resisting attempts to introduce hard law measures to regulate their transnational conduct. This article considers business and state motivations for supporting or pursuing the shift to hard law measures in the business and human rights context. It assesses Canada’s 2022 policy on responsible business conduct and the implications of the government’s failure to endow the Canadian Ombudsperson for Responsible Enterprise with the necessary powers to engage in credible independent investigations of transnational business conduct. It also considers the potential impact of three leading cases brought in Canadian courts against Canadian extractive companies in relation to their overseas operations. The article argues that these developments may not yet be sufficient on their own to shift extractive sector views on the introduction of domestic human rights due diligence legislation. It concludes with some thoughts on the impact that the legislative developments in Europe and treaty negotiations at the United Nations may have in Canada.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"36 1","pages":"363 - 388"},"PeriodicalIF":1.5,"publicationDate":"2023-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43142223","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The legacy of Antônio Augusto Cançado Trindade to contemporary international law","authors":"Patrick Robinson, Danilo B. Garrido Alves","doi":"10.1017/S0922156523000079","DOIUrl":"https://doi.org/10.1017/S0922156523000079","url":null,"abstract":"","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"36 1","pages":"445 - 450"},"PeriodicalIF":1.5,"publicationDate":"2023-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47656390","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"At war? Party status and the war in Ukraine","authors":"Alexander Wentker","doi":"10.1017/S0922156522000760","DOIUrl":"https://doi.org/10.1017/S0922156522000760","url":null,"abstract":"Abstract Military support to Ukraine has been accompanied by debates as to when Western states would find themselves ‘at war’ with Russia. This political and legal discourse reminds us that international law needs concepts to identify who is a party to an international armed conflict. Identifying parties is crucial because the international legal regulation of armed conflict remains, in many ways, structured by reference to party status – even if the legal meaning of being a party today differs significantly from the traditional implications of being ‘at war’. To capture the increasingly complex co-operation patterns of today’s and tomorrow’s wars, this article identifies the contours for a framework of legal criteria for establishing when a state has become a party to an ongoing international armed conflict. To become a party under this framework, a state must knowingly make a contribution to the conflict that is of a character such that it is directly connected to harm caused to the adversary. That contribution must be sufficiently closely co-ordinated with fellow parties to allow for involvement in the decision-making processes regarding co-ordinated military operations. Applying these criteria to key support scenarios, as exemplified in Russia’s war against Ukraine, permits reasonable distinctions, also with a view to future conflicts. More widely, the analysis of party status may enhance our understanding of the architecture of the international legal regulation of armed conflict as a whole, and its ability to respond to the realities of contemporary conflicts.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"36 1","pages":"643 - 656"},"PeriodicalIF":1.5,"publicationDate":"2023-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42857134","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mandatory human rights due diligence laws in Europe: A mirage for rightsholders?","authors":"S. Deva","doi":"10.1017/S0922156522000802","DOIUrl":"https://doi.org/10.1017/S0922156522000802","url":null,"abstract":"Abstract Mandatory human rights due diligence (HRDD) laws in the European Union (EU) – both enacted and in the making – seem to be a promising tool to harden soft international standards in the business and human rights (BHR) field, the most prominent of these being the UN Guiding Principles on Business and Human Rights (UNGPs). This article develops a two-layered critique of mandatory HRDD laws. It problematizes the very concept of HRDD as articulated by the UNGPs. I will argue that due to various conceptual, operational and structural limitations, HRDD alone will not bring the desired changes for rightsholders, because this process does not address various asymmetries of power between corporations and affected communities. The second layer of critique concerns the content of mandatory HRDD laws enacted in France, the Netherlands, Switzerland, Norway and Germany. Assessing these laws vis-à-vis six preconditions required to protect effectively people and the planet from business-related harms, it is clear that these mandatory HRDD laws are half-hearted attempts to tame business-related human rights abuses and hold the relevant corporate actors accountable. In addition to developing more ambitious mandatory HRDD laws in future, states should employ a range of additional regulatory tools that pay greater attention to achieving outcomes, drawing red lines in certain situations, and promoting access to remedy and corporate accountability.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"36 1","pages":"389 - 414"},"PeriodicalIF":1.5,"publicationDate":"2023-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44874818","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The fragmentation of international investment and tax dispute settlement: A good idea?","authors":"Javier García Olmedo","doi":"10.1017/S0922156522000814","DOIUrl":"https://doi.org/10.1017/S0922156522000814","url":null,"abstract":"Abstract The international investment and tax law regimes are undergoing a process of significant reforms that seek to address existing shortcomings of the mechanisms used for the resolution of investment and tax treaty disputes. These reforms show that policymakers are gradually adopting a fragmented approach towards dispute settlement in both fields, with the establishment of different and unco-ordinated mechanisms. This article argues that, instead of fragmenting investment and tax dispute settlement, states should consider establishing a more unified and coherent framework in order to more adequately mitigate the concerns raised in each field.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"36 1","pages":"617 - 642"},"PeriodicalIF":1.5,"publicationDate":"2023-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44763493","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Remembering Judge Cançado Trindade’s voice, faith, and integrity","authors":"Fernando Lusa Bordin","doi":"10.1017/s0922156523000067","DOIUrl":"https://doi.org/10.1017/s0922156523000067","url":null,"abstract":"Judge Antônio Augusto Cançado Trindade was a giant in the field of public international law. His career ticked almost every box one can think of – he was a beloved teacher and mentor with an influential list of publications, a legal advisor to the Brazilian government, a judge in two international courts, a member of the Institut de Droit international, and a frequent lecturer at, and member of the Curatorium of, the Hague Academy of International Law. I suspect that many students from Brazil, Latin America, and other parts of the Global South will have shared my own experience of looking up to him in awe and feeling proud that one of us went so far. There is much to be said about Judge Cançado’s accomplishments, but what I propose to do in this brief tribute is to offer some personal reflections about three attributes that, I think, make him a source of inspiration for the generations of international lawyers that succeed him. First, Judge Cançado had a truly unique voice. His writings, both as an academic and as a judge, reflected an intellectual attitude that was both fiercely independent and eclectic. In an interview that he gave to students at the University of Brasília shortly after his election to the International Court of Justice, he described himself as a ‘free thinker’ who believed that people should be allowed to search, unencumbered, for answers to the questions they encounter in their personal and professional lives.1 That sheds light on his readiness to express principled disagreement without feeling overburdened by institutional expectations; on the dynamic conception of law that he espoused, under which international law is approached as a creative and purposive endeavour rather than a mechanistic order that can be reduced to the will of states; and on the eclecticism of his legal reasoning, which was peppered with references to extra-legal sources, most notably literary works, deployed not only as metaphors and illustrations but also as ‘elements for having an answer’ for questions that conventional legal argument does not exhaust.2 At the same time, for all his playfulness, Judge Cançado took the task of offering substantive justifications for legal propositions very seriously. In his own words, ‘a judgment has to reason and to persuade’, for ‘[i]f the parties are not persuaded that that is what the law is, they’ll not abide by the judgment’.3","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"36 1","pages":"451 - 454"},"PeriodicalIF":1.5,"publicationDate":"2023-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43110134","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The choice before us: International law or a ‘rules-based international order’?","authors":"J. Dugard","doi":"10.1017/S0922156523000043","DOIUrl":"https://doi.org/10.1017/S0922156523000043","url":null,"abstract":"","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"36 1","pages":"223 - 232"},"PeriodicalIF":1.5,"publicationDate":"2023-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48929049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"National climate litigation and the international rule of law","authors":"A. Buser","doi":"10.1017/S0922156522000772","DOIUrl":"https://doi.org/10.1017/S0922156522000772","url":null,"abstract":"Abstract This article assesses the implications of national climate litigation for what is termed ‘the international rule of law’. Starting from the finding that the current international climate treaty regime lacks several elements of an international rule of law, such as legal bindingness, clarity, and justiciability, the author explores what national courts contribute to filling these gaps. Deviating from a linear progression narrative, which is prevalent in existing literature, this article provides a more nuanced and complex picture. Whereas successful climate litigation is hardly imaginable without reliance on internationally agreed-upon facts – such as reports by the Intergovernmental Panel on Climate Change and global average temperature levels deemed ‘dangerous’ – doctrinally decisions do not represent a turn toward a stricter rule of international climate law. Instead of applying and progressively developing climate treaties, courts thus far have primarily used these provisions only to develop national constitutional law and regional human rights law. The created system of highly contextual national rule(s) of climate law is a fragmented one which is regionally limited to a few states predominantly located in Western Europe. Consequently, it is a far cry from a truly global rule of international climate law.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"36 1","pages":"593 - 615"},"PeriodicalIF":1.5,"publicationDate":"2023-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45387557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A game of cat and mouse: Human rights protection and the problem of corporate law and power","authors":"C. Villiers","doi":"10.1017/S0922156522000632","DOIUrl":"https://doi.org/10.1017/S0922156522000632","url":null,"abstract":"Abstract Human rights violations by corporations are widespread and have a broad spectrum: damage to people’s health through pollution, environmental accidents and health and safety failures, forced labour or child labour, underpaid workers, displaced communities, contaminated water sources, use of excessive force, and discrimination, for example by race, gender or sexuality. Corporate violence, resulting from a long history of corporate power and colonialism continues today as corporations have grown into powerful global conglomerates. Through complex and opaque multinational groups and supply chains, use of corporate law concepts such as the corporate veil, as well as other actions such as tax avoidance and lobbying of national and international political institutions, corporate actors remain free to pursue their goals. Despite efforts to combat corporate harm through the development of a business and human rights movement success has been limited and significant gaps remain in the global governance required to ensure protection. This article argues that, similar to a cat and mouse game, corporations find new ways to defend themselves against those seeking to dismantle their power or to prevent human rights infringements. The problem is rooted in structural and systemic inequalities within the international legal framework and in company laws that maintain corporate structures that obstruct the human rights movement’s progress. The current drive towards a more sustainable business agenda requires a just transition, including transformation of global and corporate structures to tackle human rights violations and the inequalities of power and wealth that facilitate such violations.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"36 1","pages":"415 - 438"},"PeriodicalIF":1.5,"publicationDate":"2023-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47053353","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}