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Aboriginal title was one of the most remarkable and controversial legal developments in the common law world of the late-twentieth century. The common law doctrine gave sudden substance to the tribes' claims to justiciable property rights over their traditional lands, catapulting these up the national agenda and jolting them out of a seemingly embedded culture of governmental inattention. In a series of breakthrough cases national courts adopted the argument developed first in western Canada, and then New Zealand and Australia by a handful of influential scholars. Almost overnight these cases changed the political leverage of indigenous peoples. By the beginning of the millennium the doctrine had spread to Malaysia, Belize, and southern Africa, and had a profound impact upon the rapid development of international law of indigenous peoples' rights. This book is a history of this doctrine and the explosion of intellectual activity arising from this inrush of legalism into the tribes' relations with the Anglo settler state. The author of this book was one of the key scholars involved from the doctrine's appearance in the early 1980s as an exhortation to the courts, and a figure who has both witnessed and contributed to its acceptance and subsequent pattern of development. The book looks critically at the early conceptualisation of the doctrine, its doctrinal elaboration and evisceration in Canada and Australia — the busiest jurisdictions — through a proprietary paradigm located primarily (and constrictively) inside adjudicative processes. This book also considers the issues of inter-disciplinary thought and practice (for anthropologists and historians especially) arising from national legal systems' recognition of aboriginal land rights, including the emergent and associated themes of self-determination that surfaced more overtly during the 1990s and after. The doctrine made modern legal history, and it is still making it.

Copyright law has become the subject of general concerns that reach beyond the limited circles of specialists and prototypical rights-holders. The role, scope, and effect of copyright mechanisms involve genuinely complex questions. Digitization trends and the legal changes that followed drew those complex matters to the center of an ongoing public debate. This book explores theoretical, normative, and practical aspects of premising copyright on the principle of access to works. The impetus to this approach has been the emergence of technology that many consider a threat to the intended operation, and perhaps even to the very integrity, of copyright protection in the digital setting: It is the ability to control digital works already at the stage of accessing them by means of technological protection measures. The pervasive shift toward the use of digital technology for the creation, dissemination, exploitation, and consumption of copyrighted material warrants a shift also in the way we perceive the structure of copyright rules. Premising the copyright order on the concept of digital access first calls for explaining the basic components of proprietary access control over information in the abstract. The book then surveys recent developments in positive law, while showing how the theoretical access-right construct could explain the logic behind them. Finally, the book critically analyzes existing approaches to curbing the resulting problems of imbalance and overprotection, which are said to disadvantage users. In conclusion, the book advocates for a structural overhaul of our current regulative apparatus. The proposed reform involves a series of changes in the way we define copyright entitlements, and in the way in which those entitlements may interrelate within a single, coherent scheme.

Although the practice of holding armed groups to account under human rights law remains controversial and under-theorized as a matter of law, statements from Commissions of Inquiry and United Nations Special Rapporteurs holding armed groups to account under this body of law are relatively commonplace. Motivated by this contradiction, this study aims to clarify when and how armed groups are bound by human rights law. It brings several key issues of clarification to the legal framework. The first part of the book presents a new perspective on the role that human rights law plays in the legal framework that applies to non-international armed conflict. In particular, the study investigates the normative added value that human rights law can bring vis-à-vis international humanitarian law. The second part of the book sheds light on the circumstances in which armed groups acquire obligations under human rights law. Combining historical and comparative research with theoretical analysis on international legal personality, the research demonstrates what the legal frameworks of belligerency, insurgency, and international humanitarian law can tell us about when and how such groups may be bound by human rights law. The third part of the book tests and investigates the four most utilized theories of how armed groups are bound by human rights law, examining (i) treaty law, (ii) control of territory, (iii) international criminal law, and (iv) customary international law. The book’s conclusions are drawn together thematically and contain important practical recommendations for practitioners in this field.

Between September 2006 and December 2008, Simon Bikindi stood trial at the International Criminal Tribunal for Rwanda (ICTR), accused of inciting genocide with his songs. Bikindi’s trial was unprecedented. Never before had an international court or tribunal been called upon to determine a musician’s culpability for acts of genocide. This book explores how the ICTR went about that difficult task. In doing so, however, it takes a particular interest in questions of sound and listening, which it is argued have been seriously neglected in contemporary legal scholarship. One half of the book is addressed to the Tribunal’s ‘sonic imagination’. How did the Tribunal conceive of Bikindi’s songs for the purposes of judgment? How did it understand the role of radio and other media in their transmission? Why? And with what consequences for Bikindi? The other half of the book is addressed to how such concerns manifested themselves acoustically in court. Bikindi’s was a ‘musical trial’, as one judge observed. Recordings of his songs were played regularly throughout. Witnesses including Bikindi himself frequently sang. Indeed, at his appeals hearing Bikindi even sang his final statement. And all the while, judges, barristers, and witnesses alike spoke into microphones and listened on through headphones. As a result, the Bikindi case offers an ideal opportunity to explore what this book calls the ‘judicial soundscape’. Though addressed to a single case, the book’s most important innovation is to open up the field of sound to jurisprudential inquiry. Ultimately, it is an argument for a specifically acoustic jurisprudence.

Advocates of Humanity offers an analysis of international criminal justice from the perspective of sociology of punishment by exploring the role of human rights organizations in their mobilization for global justice through the International Criminal Court. Based on multi-sited ethnography, primarily in The Hague and Uganda, the author approaches the transnational networks of NGOs advocating for the ICC as an ethnographic object. A central objective is to explore how connections are made, and how forces and imaginations of global criminal justice travel. By analysing how international criminal justice is arranged spatially, and as such expresses social, political, and cultural relations of power, Advocates of Humanity shows how international criminal justice is situated in particular spaces, networks, and actors, and how they structure the imaginations of justice circulating in the field. From a sociology of punishment perspective, it compares the ‘penal imaginations’ of domestic and international criminal justice, and considers the particularly central role of victims as a universalized symbol of humanity for the legitimacy of international criminal justice. With clear global asymmetries emerging from the work, Advocates of Humanity provides descriptive as well as explanatory understandings of criminal punishment ‘gone global’, analysing its social causation while examining its cultural meanings, particularly as regards its role as an expression of ‘the international’ will to punish. To whom is it meaningful, and why?

This book is an exploration of the ways in which Americans have perceived, applied, advanced, and frustrated international law. It demonstrates the varieties and continuities of America's approaches to international law. The book begins with the important role the law of nations played for founders like Jefferson and Madison in framing the Declaration of Independence and the Constitution. It then discusses the intellectual contributions to international law made by leaders in the New Republic — Kent and Wheaton — and the place of international law in the 19th century judgments of Marshall, Story, and Taney. The book goes on to examine the contributions of American utopians — Dodge, Worcester, Ladd, Burritt, and Carnegie — to the establishment of the League of Nations, the World Court, the International Law Association, and the American Society of International Law. It finishes with an analysis of the wavering support to international law given by Woodrow Wilson and the emergence of a new American isolationism following the disappointment of World War I.

This book shows how hermeneutic theory and practice theory can be brought together to analyze cultural, legal, and religious traditions. These ideas are developed through an analysis of the Islamic legal tradition, which examines both Islamic legal doctrine and religious education. In terms of disciplinary orientation, the book combines anthropology and Islamicist history, utilizing both ethnography and in-depth analysis of Arabic religious texts. The book focuses on higher religious learning in contemporary Egypt, examining its intellectual, ethical, and pedagogical dimensions. Data is drawn from over two years of fieldwork inside al-Azhar University, Cairo University’s Dār al-ʿUlūm, and the network of traditional study circles associated with the al-Azhar mosque. Together these sites constitute the most important venue for the transmission of religious learning in the contemporary Muslim world. Although the book gives special attention to contemporary Egypt, it provides a broader analysis relevant to Islamic legal doctrine and religious education throughout history.

Investment treaty arbitration (sometimes called ISDS or investor-state dispute settlement) has become a flashpoint in the backlash against globalization, with costs becoming an area of core scrutiny. Yet “conventional wisdom” about costs is not necessarily wise. To separate fact from fiction, this book reality tests claims about investment arbitration and fiscal costs against hard data so that policy reforms can be informed by scientific evidence, rather than intuition or cognitive illusions. The exercise is critical, as investment treaties grant international arbitrators the power to order states—both rich and poor—to pay potentially millions of dollars to foreign investors when states violate the international law commitments made in the treaties. Meanwhile, the cost to access and defend the arbitration can also be in the millions of dollars. This book uses cognitive psychology insights and hard data to explore the reality of investment treaty arbitration, identify core demographics and basic information on outcomes, and drill down on the costs of parties’ counsel and arbitral tribunals. It offers a nuanced analysis of how and when cost-shifting occurs, parses tribunals’ rationalization (or lack thereof) of cost assessments, and models the variables most likely to predict costs, using data to point the way toward evidence-based normative reform. With an intelligent interdisciplinary approach that speaks to ongoing reform at entities such as the World Bank’s ICSID and UNCITRAL, this book provides the most up-to-date study of investment treaty dispute resolution costs, offering new insights that will shape the direction of investment treaty and arbitration reform more broadly.

Invoking famous words by Martin Luther King Jr.–‘the arc of the moral universe is long, but it bends toward justice’–this volume analyses developments respecting global justice in the decades since the end of World War II. Presented are dozens of essays by eminent scholars, each contributed in recognition of the collection’s honouree, Professor William A. Schabas. Schabas’s work has spanned many topics in international law and has placed him in multiple roles in international courts and organizations. Accordingly, this volume discusses institutions including the United Nations, the European Court of Human Rights, and the International Criminal Court, and instruments including the Universal Declaration of Human Rights, the Convention Against Torture, and the Canadian Charter of Human Rights and Freedoms. Fits and starts in global justice are examined with regard to many phenomena: peace and war, international crimes, culture, death penalty, environmental degradation, and not least, education and scholarship.

Are international courts effective tools for international governance? Do they fulfil the expectations that led to their creation and empowerment? Why do some courts appear to be more effective than others, and do so such appearances reflect reality? Could their results have been produced by other mechanisms? This book evaluates the effectiveness of international courts and tribunals by comparing their stated goals to the actual outcomes they achieve. Using a theoretical model borrowed from social science, the book assesses their effectiveness by analysing key empirical data. Its first part is dedicated to theory and methodology, laying out the effectiveness model, explaining its different components, its promise and limits, and discussing the measurement challenges it faces. The second part analyses the role that indicators such as jurisdiction, judicial independence, legitimacy, and compliance play in achieving effectiveness. Part three applies the effectiveness model to the International Court of Justice, the WTO dispute settlement mechanisms (panels and Appellate Body), the International Criminal Tribunals for Rwanda and Yugoslavia, the European Court of Human Rights, and the European Court of Justice, reflecting the diversity of the field of international adjudication.

Hate speech is widely considered a precondition for mass atrocity. Since World War II a large body of case law has interpreted the key offenses criminalizing such discourse: (1) incitement to genocide; and (2) persecution as a crime against humanity. But the law has developed in a fragmented manner. Surprisingly, no volume has furnished a comprehensive analysis of the entire jurisprudential output and the relation of each of its parts to one another and to the whole. Atrocity Speech Law fills this gap and provides needed perspective for courts, government officials, and scholars. Part 1, “Foundation,” explores the historical relationship between speech and atrocity and the foundations of the current legal framework. Part 2, “Fragmentation,” details the discrepancies and deficiencies within that framework. Part 3, “Fruition,” proposes fixes for the individual speech offenses and suggests a more comprehensive solution: a “Unified Liability Theory,” pursuant to which there would be four criminal modalities placed in one statutory provision and applying to genocide, crimes against humanity, and war crimes: (1) incitement; (2) speech abetting; (3) instigation; and (4) ordering. Apart from the issue of fragmentation, experts have failed to find an accurate designation for this body of law. “International Incitement Law” and “International Hate Speech Law,” two of the typical labels, do not capture the law’s breadth or its proper relationship to mass violence. So with a more holistic and accurate approach in mind, this book proposes a new name for the overall body of international rules and jurisprudence: “atrocity speech law.”

This book aims to clarify, critically discuss, and propose solutions for the application of international rules of attribution of conduct to States under public international law and international investment law. In a nutshell, the issue is that of the applicability of the principles of ‘attribution’ to States of acts that are in breach of their obligations under international custom or international treaties, with a focus on their commitments pertaining to the treatment of foreign investors under international investment agreements (IIAs), mostly bilateral investment treaties (BITs), and their application by arbitral tribunals. Of special interest and the object of extensive debate within this context is the responsibility of States when the alleged breach has been committed not by the State itself through its organs, but by entities which have separate legal personality under domestic law, which, nevertheless, may engage the responsibility of the State under international law, such as State-owned enterprises (SOEs). The book addresses the relevant issues in a systematic way, approaching them first in general terms on the basis of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) on attribution, finalized by the International Law Commission (ILC) in 2001, and proceeding thereafter to the specifics of international investment law, based on an accurate examination of the law, practice, and case law, with full knowledge and consideration of the academic debate. To this extent, the book submits that the general principles on attribution are fully applicable within international investment law, which is not a closed system governed by different principles, and that tribunals have to apply them as they generally do.

This book tackles an old, but ever relevant question: does international law enjoy legal authority over domestic orders? If so, what is the form and extent of the authority of international law? The book answers the first question in the positive. International law enjoys authority over domestic political and judicial organs. Such authority, however, has sui generis characteristics. It may not be conclusive authority. It may also not demand blind obedience. What international law demands at the very least is minimalist deference. The book answers the second question by holding that each and every international law does not make identical claims to authority. What form and extent of authority international law enjoys depends on whether a particular international law imposes a strong, a weak, or a rebuttable duty. The duty of a domestic judge and politician is to reflectively ask and engage with what kind of a duty she is engaged in when bringing the international law’s authority back home. The book has a decidedly practice-based and doctrinal approach to the questions it sets for itself. It demonstrates that realists, rationalists, and more recently democratic theorists have long attacked international lawyers. It is time to respond by offering a defence of the authority of international law and how it functions.

The so-called ‘decolonization era’ witnessed a fundamental challenge to (legalized) Western hegemony through a new vision of the institutional environment and political economy of the world. It is during this era, arguably couched between classic European imperialism and a new form of US-led Western hegemony, that fundamental legal debates took place over a new international legal order for a decolonized world. These debates consist in essence of a battle that was fought by diplomats, lawyers and scholars over, in particular, the premises and principles of international law. In a moment of relative weakness of European powers, ‘newly independent states’ and international lawyers from the South fundamentally challenged traditional Western perceptions of international legal structures engaging in fundamental controversies over a new international law. This book argues that international legal structures in many areas of international relations, including international economic law, the use of force, international humanitarian, the law of the sea, and human rights have been transformed during this era. The effect of this transition, however, was enabling the change from classic European imperialism to new forms of US-led Western hegemony. It draws on Koselleck’s Sattelzeit concept—bridging two different forms of global Western dominance—in which fundamental concepts of international law were re-imagined, politicized, and transformed. All aspects of this battle are of vital importance for any future project aiming to address and alter the relationship between international law and fundamental inequalities in this world.

Between Impunity and Imperialism: The Regulation of Transnational Bribery describes the legal regime that regulates transnational bribery, identifies and explains the rationales that have guided its evolution, and suggests directions for reform. The broad argument is that the current regime embodies a set of values, theories, and practices labeled the “OECD paradigm.” A key premise is that transnational bribery is a serious problem which merits a vigorous legal response, particularly given the difficulty of detecting instances of bribery. The shape of the appropriate response can be summed up in the phrase, “every little bit helps.” In practice this means that: prohibitions should capture a broad range of conduct; enforcement should target as broad a range of actors as possible; sanctions should be as stiff as possible; and as many enforcement agencies as possible should be involved in the enforcement process. The OECD paradigm embraces two interrelated propositions: that transnational bribery is a serious problem and that it demands a uniform response. An important challenge to the OECD paradigm, labeled the “anti-imperialist critique,” accepts that transnational bribery is a serious problem but denies that the appropriate legal responses must be uniform. This book explores both the OECD paradigm and the anti-imperialist critique, and provides a detailed analysis of their implications for the key elements of transnational bribery law. It concludes by suggesting that the competing views can be reconciled by moving toward a more inclusive and experimentalist regime which accommodates reasonable disagreements about regulatory design and is crafted with due attention to the interests of all affected parties.

This book traces a fundamental transformation in law—the turn towards ‘postnational law’—which reflects the increasing enmeshment of national, regional, and international law and calls into question central legitimating principles of the different layers. Two fundamental approaches to the structure of this new legal order stand out and form the focus of this book: constitutionalism and pluralism. Postnational constitutionalism embodies the hope of integrating the order through an overarching legal framework that would tame politics by defining relations and institutionalizing key values. Yet such a constitutionalist order would require too massive a transformation of postnational institutions and society, and thinner approaches, widespread in the literature and more realistic, would sell the constitutionalist promise short. This book proposes instead to conceptualize and develop the postnational order in a pluralist vein, characterized by a multiplicity of legal sub-orders, not connected through an overarching frame but interacting in often political modes. Many areas of regional and global governance can be understood in such terms, as demonstrated here for the European human rights regime, the UN sanctions regime in its tension with human rights, and the regime complex of international trade, environment, and food safety. The pluralism on display in these examples also holds normative appeal. By reflecting diverging views on the right scope of the polity, it respects individuals’ autonomy and their right to shape their political order, thus furthering democratic values. By leaving relations between different layers of law unsettled, it allows for contestation and adaptation which helps to stabilize postnational governance and remedy power imbalances in its initial design. In the highly diverse and contested space of the postnational, breaking with domestic political traditions and going ‘beyond constitutionalism’ towards a pluralist order may be the better option.

This book examines the relatively recent and under-explored phenomenon of outward foreign direct investment (FDI) from the large emerging market countries, focusing on the four BRIC states (Brazil, Russia, India, and China) and on the services sector meaning primarily telecommunications, finance, and transport. It considers the international legal framework governing FDI, discussing the nature and extent of the bilateral and regional investment treaty commitments undertaken by each of the BRIC states, including their commitments under the WTO General Agreement on Trade in Services, as well as their obligations as members of the International Monetary Fund and the World Bank. Drawing on trends observed in the regulatory approach of these countries to FDI in services, including the observed flow of FDI both to and now from the developing world, the book proposes a multilateral investment treaty aimed at the liberalisation and protection of FDI in services. The treaty will capture the emerging equilibrium in global FDI patterns signifying a unified approach to the regulation of foreign investment in the growing services economy by developing and developed economies alike. The treaty will strengthen the legitimacy of investor-state dispute settlement and recognise public interest norms such as environmental protection and human rights as well as allow signatories to retain sovereignty over matters relating to national security and economic stability.

Africa often remains neglected in studies that discuss the historical relationship between international law and imperialism during the nineteenth century. When it does feature, scholarly focus tends to be on the late nineteenth century and on the treaties concluded between European powers and African polities in which sovereignty and territory were ceded. Through a contextual historical analysis, Inge Van Hulle complicates this traditional narrative. By reviewing the use and creation of legal instruments that expanded or delineated the boundaries between British jurisdiction and African communities in West Africa, she highlights the practicality and flexibility of international legal discourse in imperial contexts. The chronological focus of the book is the period between the end of the eighteenth century and the 1880s which the author identifies as an important phase of legal experimentation which saw substantial deviations in the legal relationship between African polities and British imperial agents, not merely from traditional Euro-African normative patterns as they had existed during the Early Modern period, but also from inter-Western international law. By the 1880s the legal techniques that were fashioned in the language of international law in West Africa had largely developed their own substantive characteristics and which included apart from treaties of cession, also commercial treaties, the abolition of the slave trade, extraterritoriality and the use of force. During this period, legal ordering was not done in reference to adjudication before Western courts or the writings of Western learned lawyers, but in reference to what was deemed politically expedient and practically feasible by imperial agents for the preservation of social peace, commercial interaction and humanitarian agendas.