Pub Date : 2023-11-28DOI: 10.1017/s0922156523000596
Xuexia Liao
Delimitation of the continental shelf beyond 200 nautical miles (nm) is a relatively novel exercise by international courts and tribunals, and a question that assumes theoretical and practical importance is whether the delimitation methodology primarily developed in maritime delimitation within 200 nm can be applied to the delimitation beyond that distance. In contrast to some prevailing arguments that the delimitation methodology for the continental shelf beyond 200 nm should somewhat differ, this article examines whether the delimitation beyond 200 nm can be integrated under the three-stage approach articulated by the ICJ in the 2009 Black Sea case and discusses what methodological problems have been raised in the delimitation process. By analysing the applicability and application of the three-stage approach to the continental shelf delimitation beyond 200 nm in the jurisprudence, this article argues that substantive integration of the delimitation methodology for the continental shelf beyond 200 nm has taken place and is likely to continue. The integrated approach to the delimitation methodology adopted in the Bangladesh v. India case and the Ghana/Côte d’Ivoire case may prove to be guiding precedents that indicate a way forward in the jurisprudence.
{"title":"Delimitation methodology for the continental shelf beyond 200 nautical miles: Three-stage approach as a way forward?","authors":"Xuexia Liao","doi":"10.1017/s0922156523000596","DOIUrl":"https://doi.org/10.1017/s0922156523000596","url":null,"abstract":"Delimitation of the continental shelf beyond 200 nautical miles (nm) is a relatively novel exercise by international courts and tribunals, and a question that assumes theoretical and practical importance is whether the delimitation methodology primarily developed in maritime delimitation within 200 nm can be applied to the delimitation beyond that distance. In contrast to some prevailing arguments that the delimitation methodology for the continental shelf beyond 200 nm should somewhat differ, this article examines whether the delimitation beyond 200 nm can be integrated under the three-stage approach articulated by the ICJ in the 2009 <jats:italic>Black Sea</jats:italic> case and discusses what methodological problems have been raised in the delimitation process. By analysing the applicability and application of the three-stage approach to the continental shelf delimitation beyond 200 nm in the jurisprudence, this article argues that substantive integration of the delimitation methodology for the continental shelf beyond 200 nm has taken place and is likely to continue. The integrated approach to the delimitation methodology adopted in the <jats:italic>Bangladesh</jats:italic> v. <jats:italic>India</jats:italic> case and the <jats:italic>Ghana/Côte d’Ivoire</jats:italic> case may prove to be guiding precedents that indicate a way forward in the jurisprudence.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"8 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138542296","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}
Pub Date : 2023-11-15DOI: 10.1017/s0922156523000547
Jörg Kammerhofer
Res judicata is a core belief of international law; the ICJ’s judgments are seen as final and without appeal, to doubt that is apparently equal to calling the entire international legal order into question. But the doctrine is not as absolute as the orthodoxy makes it out to be, neither as a matter of positive international law nor as a statement of legal theory. Even final judgements are not always final and appeals procedures and judicial review are not special in that they engage res judicata whereas regular legal change does not; rather, both do from a legal-theoretical vantage-point. This article makes the point by looking at ICJ interpretation judgments under Article 60; it argues that, far from leaving the original judgment’s res judicata intact, interpretation judgments actually impinge or even disrupt it. The article discusses ICJ interpretation judgments (the 2013 judgment in Preah Vihear serving as convenient example), introduces Adolf Julius Merkl’s Error Calculus theory as the theoretical framework best suited to analysing the nomomechanics and critiques the Preah Vihear interpretation judgment as change disguised as a hermeneutic exercise. It then turns the critical enterprise on its head to look at the Error Calculus theory itself to lay the groundwork for an even more audacious argument that the Error Calculus does not depend on errors in the narrow sense of the word: it is neither an ex post ratification of an imperfect norm nor a confirmation of invalidity, but the derogation of a perfectly valid norm.
{"title":"Beyond the res judicata doctrine: The nomomechanics of ICJ interpretation judgments","authors":"Jörg Kammerhofer","doi":"10.1017/s0922156523000547","DOIUrl":"https://doi.org/10.1017/s0922156523000547","url":null,"abstract":"<jats:italic>Res judicata</jats:italic> is a core belief of international law; the ICJ’s judgments are seen as final and without appeal, to doubt that is apparently equal to calling the entire international legal order into question. But the doctrine is not as absolute as the orthodoxy makes it out to be, neither as a matter of positive international law nor as a statement of legal theory. Even final judgements are not always final and appeals procedures and judicial review are not special in that they engage <jats:italic>res judicata</jats:italic> whereas regular legal change does not; rather, both do from a legal-theoretical vantage-point. This article makes the point by looking at ICJ interpretation judgments under Article 60; it argues that, far from leaving the original judgment’s <jats:italic>res judicata</jats:italic> intact, interpretation judgments actually impinge or even disrupt it. The article discusses ICJ interpretation judgments (the 2013 judgment in <jats:italic>Preah Vihear</jats:italic> serving as convenient example), introduces Adolf Julius Merkl’s Error Calculus theory as the theoretical framework best suited to analysing the nomomechanics and critiques the <jats:italic>Preah Vihear</jats:italic> interpretation judgment as change disguised as a hermeneutic exercise. It then turns the critical enterprise on its head to look at the Error Calculus theory itself to lay the groundwork for an even more audacious argument that the Error Calculus does not depend on errors in the narrow sense of the word: it is neither an <jats:italic>ex post</jats:italic> ratification of an imperfect norm nor a confirmation of invalidity, but the derogation of a perfectly valid norm.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"5 3","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138525955","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}
Pub Date : 2023-11-15DOI: 10.1017/s0922156523000638
Eliana Cusato, Rebecca Mignot-Mahdavi, Sofia Stolk, Renske Vos
{"title":"In praise of multiplicity: Suspending the desire to change the world","authors":"Eliana Cusato, Rebecca Mignot-Mahdavi, Sofia Stolk, Renske Vos","doi":"10.1017/s0922156523000638","DOIUrl":"https://doi.org/10.1017/s0922156523000638","url":null,"abstract":"","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"9 1","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139272406","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}
Pub Date : 2023-11-08DOI: 10.1017/s0922156523000602
An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
{"title":"LJL volume 36 issue 4 Cover and Front matter","authors":"","doi":"10.1017/s0922156523000602","DOIUrl":"https://doi.org/10.1017/s0922156523000602","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"30 51","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135390443","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}
Pub Date : 2023-11-08DOI: 10.1017/s0922156523000614
An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
{"title":"LJL volume 36 issue 4 Cover and Back matter","authors":"","doi":"10.1017/s0922156523000614","DOIUrl":"https://doi.org/10.1017/s0922156523000614","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"29 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135391108","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}
Pub Date : 2023-11-08DOI: 10.1017/s0922156523000584
Matilde Cazzola
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{"title":"Andrew Fitzmaurice, King Leopold’s Ghostwriter: The Creation of Persons and States in the Nineteenth Century, Princeton University Press, 2021, 592pp, ISBN: 9780691148694, $39.95","authors":"Matilde Cazzola","doi":"10.1017/s0922156523000584","DOIUrl":"https://doi.org/10.1017/s0922156523000584","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135390723","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}
Pub Date : 2023-11-03DOI: 10.1017/s0922156523000626
Vasyl Chornyi
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{"title":"Chien-Huei Wu, Law and Politics on Export Restrictions: WTO and Beyond, Cambridge University Press, 2021, ISBN 9781108953566 (e-pub), doi:10.1017/9781108953566","authors":"Vasyl Chornyi","doi":"10.1017/s0922156523000626","DOIUrl":"https://doi.org/10.1017/s0922156523000626","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"30 12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135820067","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}
Pub Date : 2023-10-20DOI: 10.1017/s092215652300050x
Magdalena Słok-Wódkowska, Joanna Mazur
Abstract The subject of this analysis is the role that regional trade agreements (RTAs) play in balancing between personal data commodification and protection of privacy and personal data, approached from the perspective of Karl Polanyi’s theory of double movement. We analyse provisions on cross-border information transfers and data protection in order to establish the models for balancing between the ideas of personal data commodification and social protection, understood as allowing for the use of measures that ensure privacy and personal data protection. Our analysis indicates that there are two general models concerning the liberalization of cross-border information transfers: one model restricts states’ ability to restrict data flows while the other is more open to such measures. Next, we identify three primary models governing how data protection is treated in the agreements that liberalize data flows: one that is based on the inclusion of substantive standards of protection in the content of the given agreement; one that uses international standards as a proxy for establishing certain level of protection; and one that is based on national data protection laws. Combining identified models of liberalizing data flows with identified models of ensuring data protection allows us to show that the inclusion of seemingly similar provisions on cross-border data transfers in various RTAs has resulted in developing several different models for balancing between commodification of personal data and data protection.
{"title":"Between commodification and data protection: Regulatory models governing cross-border information transfers in regional trade agreements","authors":"Magdalena Słok-Wódkowska, Joanna Mazur","doi":"10.1017/s092215652300050x","DOIUrl":"https://doi.org/10.1017/s092215652300050x","url":null,"abstract":"Abstract The subject of this analysis is the role that regional trade agreements (RTAs) play in balancing between personal data commodification and protection of privacy and personal data, approached from the perspective of Karl Polanyi’s theory of double movement. We analyse provisions on cross-border information transfers and data protection in order to establish the models for balancing between the ideas of personal data commodification and social protection, understood as allowing for the use of measures that ensure privacy and personal data protection. Our analysis indicates that there are two general models concerning the liberalization of cross-border information transfers: one model restricts states’ ability to restrict data flows while the other is more open to such measures. Next, we identify three primary models governing how data protection is treated in the agreements that liberalize data flows: one that is based on the inclusion of substantive standards of protection in the content of the given agreement; one that uses international standards as a proxy for establishing certain level of protection; and one that is based on national data protection laws. Combining identified models of liberalizing data flows with identified models of ensuring data protection allows us to show that the inclusion of seemingly similar provisions on cross-border data transfers in various RTAs has resulted in developing several different models for balancing between commodification of personal data and data protection.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135571213","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}
Pub Date : 2023-10-16DOI: 10.1017/s0922156523000535
Nina Reiners
Abstract This article argues for international legal change in human rights as a consequence of a states-as-bystander effect: When states do neither actively drive nor block change processes, and alternative state-empowered authorities exist in a legal field, states’ position at the sidelines opens a path for non-state actors to enact substantive change. In human rights law, this is a process they route through General Comments, a powerful instrument of the human rights treaty bodies to set, expand, and redefine standards for global human rights. This article bears its core argument of a states-as-bystander effect by taking a single norm, the necessity of water for human life, and tracing its change process from non-existent in human rights law, to a non-right, to a condition for other rights, and, finally, to the recognition of water and sanitation as independent rights at the international level. Ultimately, the analysis shows that non-actors can enact change to law, and do so, on the heels of states’ relegation to the periphery of the human rights system. This opened the door for certain actors – transnational coalitions of expert body members, human rights advocates and issue professionals – to use General Comments in a way that not only impacts international legal change but can also withstand state opposition.
{"title":"States as bystanders of legal change: Alternative paths for the human rights to water and sanitation in international law","authors":"Nina Reiners","doi":"10.1017/s0922156523000535","DOIUrl":"https://doi.org/10.1017/s0922156523000535","url":null,"abstract":"Abstract This article argues for international legal change in human rights as a consequence of a states-as-bystander effect: When states do neither actively drive nor block change processes, and alternative state-empowered authorities exist in a legal field, states’ position at the sidelines opens a path for non-state actors to enact substantive change. In human rights law, this is a process they route through General Comments, a powerful instrument of the human rights treaty bodies to set, expand, and redefine standards for global human rights. This article bears its core argument of a states-as-bystander effect by taking a single norm, the necessity of water for human life, and tracing its change process from non-existent in human rights law, to a non-right, to a condition for other rights, and, finally, to the recognition of water and sanitation as independent rights at the international level. Ultimately, the analysis shows that non-actors can enact change to law, and do so, on the heels of states’ relegation to the periphery of the human rights system. This opened the door for certain actors – transnational coalitions of expert body members, human rights advocates and issue professionals – to use General Comments in a way that not only impacts international legal change but can also withstand state opposition.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136112914","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}
Pub Date : 2023-10-16DOI: 10.1017/s0922156523000511
James Gerard Devaney
An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.
{"title":"Leaning from the steep slope: On coherence in response to Professor Jean d’Aspremont","authors":"James Gerard Devaney","doi":"10.1017/s0922156523000511","DOIUrl":"https://doi.org/10.1017/s0922156523000511","url":null,"abstract":"An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136113318","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}
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