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Index
Participants in the International Legal System
Routledge Research in International Law
Participants in the International Legal System
Contents
Cases and statutes
TABLE OF STATUTORY MATERIALS
INTERNATIONAL
Agreements
Charters
Conventions see under Treaties and Conventions (below)
Covenants
Declarations
Directives
General documentation
Geneva Conventions 1949 (One to Four), 88, 92, 208, 209, 212, 218
Geneva Conventions: Additional Protocol I (1977), 20–1, 208–9, 212, 231–2
Geneva Conventions: Additional Protocol II (1977), 186, 206, 207, 210, 211, 212, 213, 214, 215, 218, 223, 229, 232, 307
Geneva Conventions: Additional Protocol III (2005), 212
Reports
Resolutions
Rules, Regulations and Statutes
Statutes see Rules, Regulations and Statutes above
Treaties and Conventions
NATIONAL
Australia
Canada
Spain
United States
INTERNATIONAL
American Commission of Human Rights, Inter-American Court of Human Rights and Inter-American Human Rights Commission
Dispute Settlement Understanding (DSU), WTO
European Court of Human Rights (ECtHR)
European Court of Justice (ECJ)
Extraordinary Chambers of the Courts of Cambodia (ECCC)
General Court/Court of First Instance
International Centre for Settlement of Investment Disputes (ICSID)/NAFTA Arbitration
International Court of Justice (ICJ)
International Criminal Court (ICC), Pre-Trial Chamber
International Criminal Tribunal for Rwanda (ICTR)
International Criminal Tribunal for the Former Yugoslavia (ICTY)
Permanent Court of International Justice (PCIJ)
United Nations Committee on the Elimination of Racial Discrimination
NATIONAL
Canada
Sierra Leone
United Kingdom
United States
Notes on contributors
Foreword
Acknowledgments
Presentation
Introduction
1 A preliminary conceptual difficulty: the impossibility of a formal ascertainment of authors and addressees of international legal rules
2 Contemporary dynamics: an unabated pluralization of international law-making
3 A sketch of the literature: from the positivistic study of the rights and duties of legal subjects to the multidisciplinary examination of international law-making and law-enforcement processes
4 The structure of this volume: four main families of cognitive biases
4.1 Theoretical perspectives
4.2 Regional perspectives
4.3 Institutional perspectives
4.4 Subject-matter based perspectives
Notes
Part I
Theoretical perspectives
1 Non-state actors from the perspective of legal positivism
1 Postmodern legal positivism
2 Formal status of non-state actors
3 Non-state actors as a source of communitarian semantics for the secondary rules of the international legal system
Notes
2 Non-state actors from an international constitutionalist perspective
1 Basic features of a constitutionalist approach to international law
2 Interfaces between international constitutionalism and subjects doctrine
2.1 The rise of non-state actors as a trend which meets constitutionalization halfway
2.2 Heterogeneity of actors as a hindrance to the constitutionalization of the international legal order
3 Conceptualizing international legal personality as membership in the global constitutional community
4 No constitutionalization without participation
Notes
3 Non-state actors from the perspective of the Pure Theory of Law
1 Introduction
2 Constructing legal personality
3 Personalising the state as a legal order in international law
4 Non-state actors: constructing personality in international law beyond the state
5 Conclusion
Notes
4 Non-state actors from the perspective of the policy-oriented school
1 Inducements to act
2 Realism is seductive
3 Ambiguity is a power tool
4 Power, realism, and New Haven
5 Descriptivism is deceptive
6 When law is commingled with power
7 Law motivates
8 The international arena: ten axioms
9 Can international law assimilate human rights?
Notes
5 Towards an interdisciplinary approach to non-state participation in the formation of global law and order
Notes
Part II
The regional perspectives
6 Non-state actors in French legal scholarship
1 Historical evolution of non-state actors in French literature
2 Non-state actors in current French literature: the quest for international personality
3 Problems associated with the traditional French approach to international personality
4 The way forward: understanding ‘international’ personality?
Notes
7 Non-state actors in North American legal scholarship
1 School of New Haven: the emergence of the decision-maker
2 David Kennedy – the humanitarian and politics
3 Third-world approaches and the role of social movements in international law
4 Conclusion
Notes
8 Non-state actors in Southeast Asia
1 Introductory overview
2 The Asian and ASEAN outlook on international law and global governance: the primacy of sovereignty
3 ASEAN, non-state actors and human rights: the formation of soft law
4 Concluding thoughts
Notes
9 Contemporary Russian perspectives on non-state actors*
1 Introductory remarks: Grotian and Kantian traditions of international law
2 Grotian and Kantian approaches in Russian legal scholarship
3 Sovereignty in Russian international legal scholarship
4 Concluding remarks
Notes
Part III
Institutional perspectives
10 Non-state actors from the perspective of the International Court of Justice
1 Non-state actors in the jurisprudence of the Court
1.1 Rights of certain non-state actors in the jurisprudence of the Court
1.1.1 Rights of international organizations
1.1.2 Rights of peoples under international law
1.1.3 Rights of individuals under international law
1.2 Obligations binding certain non-state actors under international law
1.2.1 Obligations arising under Security Council resolutions with regard to certain non-state actors
1.2.1 Imputability of the actions of non-state actors to states
1.3 Concluding remarks on non-state actors in the jurisprudence of the Court
2 Non-state actors in proceedings before the Court
2.1 Non-state actors in contentious cases
2.2 Non-state actors in advisory proceedings
2.2.1 The practice of the Permanent Court
2.2.2 International organizations in advisory proceedings at the International Court
2.2.3 Non-governmental organizations in advisory proceedings
2.2.4 Entities striving towards statehood: a specific type of non-state actor
3 Reflections as to the desirability of amending the Statute to allow further participation in contentious proceedings by international organizations
3.1 Extending the jurisdiction of the Court to include international organizations as parties in its proceedings
3.2 Extending the jurisdiction of the Court to include individual or private persons as parties in its proceedings
Notes
11 Non-state actors from the perspective of the International Law Commission
1 The ILC as a non-state actor: its role and mission
2 The ILC's understanding of the role and status of non-state actors
2.1 State responsibility for acts of non-state actors
2.2 Accountability for non-state actors (individuals) under international law
2.2.1 Draft Statute for an International Criminal Court
2.2.2 Draft Code of Crimes against the Peace and Security of Mankind
2.2.3 Obligation to extradite or prosecute
2.2.4 Responsibility of international organizations
2.3 Non-state actors as direct addressees of rights and obligations
2.3.1 Protection of Persons in the Event of Disasters
2.3.2 Expulsion of Aliens
3 Concluding remarks
Notes
12 Non-state actors from the perspective of the Institut de Droit international
Notes
13 Non-state actors from the perspective of international criminal tribunals
1 International criminal tribunals as non-state actors
2 Non-state actors in the practice of international criminal tribunals
2.1 The legal foundation for cooperation requests
2.2 ICTY relations with non-state actors
2.3 ICTY relations with non-state actors: in particular, NATO
3 A possible fresh conceptual approach to non-state entities’ cooperation with international criminal tribunals
4 Concluding remarks
Notes
14 Non-state actors from the perspective of the International Committee of the Red Cross
1 The ICRC as an actor in relation to armed groups
1.1 The ICRC right of initiative
1.2 The ICRC assisting role in IHL dissemination
2 ICRC's take on the applicability of IHL to armed groups
2.1 An ICRC position?
2.2 Relevance of the alleged ICRC positions
2.2.1 Theories linking armed groups to the state within or against which they are fighting
2.2.2 Theories based on the consent or practice of armed groups
2.2.3 Critical assessment
3 Concluding remarks
Notes
15 The International Law Association and non-state actors
1 The ILA's institutional development
2 The ILA from the perspective of the international lawyer
3 Profiling the ILA: academic disciplines as transnational participants
4 The ILA Committee on NSAs: discipline and discourse
5 Conclusion
Notes
16 NGOs’ perspectives on non-state actors
1 Role of NGOs in the practice of international law
1.1 Role in the creation and interpretation of international legal norms
1.2 Role on the implementation of international law
1.3 Role on the efficiency of international law
2 How NGOs perceive their role
2.1 Enforcing respect for international law and fighting against impunity
2.2 Making the voices of the people and victims heard
2.3 Promoting new norms and institutions
2.4 Asking for social change
3 Conclusion
Notes
Part IV
Subject-matter based perspectives
17 Non-state actors and human rights
1 Introduction
2 Human rights and transnational corporate activity: the factual dimension
3 Theoretical contours of the debate: human rights obligations and non-state actors in a state-centric legal system
4 Human rights obligations of transnational corporations and the attempts to formalise corporate activity and responsibility in international law
4.1 The absence of any ‘hard’ direct corporate responsibility in international law
4.2 Domestic jurisdictional mechanisms for corporate responsibility: the Alien Tort Statute
4.3 The prospects of international criminal corporate responsibility
5 Conclusion
Notes
18 Non-state actors in international humanitarian law
1 Introduction
2 The binding character of international humanitarian law for non-state actors
3 Concluding observations
Notes
19 Non-state actors in international criminal law
1 Non-state participants as law-makers in ICL
2 The normative content of the law – the example of Joint Criminal Enterprise
3 Conclusion: parameters for a dynamic process of law
Notes
20 Non-state actors in international institutional law
1 Introduction
2 Actor or Agora? Making sense of the IGO in international law
3 Between inter-state and non-state? The Reparation case and the paradox of IGO personality in international law
4 Conclusion: the importance of the ambiguity
Notes
21 Non-state actors in international peace and security
1 Introduction
2 The use of force by non-state actors
3 Self-defence against states in relation to non-state actors and against non-state actors
3.1 Self-defence against a state in relation to armed attacks by non-state actors emanating from its territory
3.2 Self-defence against non-state actors
3.3 Forcible reprisals against states and non-state actors
4 The United Nations and non-state actors
5 Conclusion
Notes
22 Non-state actors in international dispute settlement
1 Introduction
2 The position of non-state actors in the settlement of international disputes
3 Individuals, corporations and international investment arbitration
4 Non-state actors as ‘friends of the court’: NGO participation in international dispute settlement
4.1 NGOs and the International Court of Justice45
4.2 NGOs and the WTO dispute settlement system
4.3 NGOs in international investment arbitration
5 Concluding remarks: resisting the temptation of a formalization of the status of non-state actors in international dispute settlement
Notes
23 Non-state actors in international investment law
1 Introduction
2 An overview of international investment law
3 Corporations as subjects of international law
4 Public interest groups as participants in investor–state arbitration
5 Conclusion
Notes
24 Non-state actors in international environmental law
1 Introduction: from the ‘social contract’ to the ‘environmental pact’
2 From the ‘environmental pact’ to the ‘sustainable development contract’: the generations of non-state actors
2.1 The ‘environment community’
2.2 The ‘sustainable development community’
3 From a ‘partnership’ to a ‘community’: the role of non-state actors in the ‘environment global partnership’
3.1 The ‘Model of Surveillance’
3.2 The ‘model of transparency’
3.3 The ‘model of mutuality’
4 Conclusion: from ‘autonomy’ to ‘self-regulation’
Notes
25 Non-state actors in refugee law
1 Introduction
2 Power without glory: refugee-hood and the shrinking sphere of state protection
3 Sex and power: asylum claims based on domestic violence
4 Exclusion cases: power, morality and xenophobia
5 Conclusion
Notes
26 Non-state actors in European law
1 Introduction
2 Non-state actors and the EU law-making process
2.1 Addressing the legitimacy gap through increased participation of non-state actors in EU governance
2.1.1 Promoting participation: general principles and minimum standards for consultation
2.1.2 Ensuring accountability: register and code of conduct for interest representatives
2.2 Institutionalization of the role of non-state actors in some EU policy areas
2.2.1 Non-state actors in EU development policy
2.2.2 Non-state actors in EU fisheries policy
3 Non-state actors and the EU law-enforcement process
3.1 Towards a relaxation of standing rules to challenge the legality of generally applicable EU norms
3.2 Towards ‘organizational’ standing in environmental matters?
4 Conclusion
Notes
27 Conclusion
1 Non-state actors and the international legal scholarship
2 Pragmatism v. systemic conceptualization
3 Ascertaining and identifying non-state actors
4 Inclusive international law-making processes and law-enforcement mechanisms
5 Inclusive customary law-making?
6 Continuing state dominance on international law-making processes
7 Personification of non-state actors in the international legal system
8 Bindingness of (some) international legal rules upon non-state actors
9 An inextricably exclusive international legal system
10 Legitimacy and authority of international law
Notes
Index
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