Christian J. Tams

Convention on the Prevention and Punishment of the Crime of Genocide

General Introduction (Tams/Berster/Schiffbauer) Article I (Tams) Article II (Berster) Article III (Berster) Article IV (Schiffbauer) Article V (Schiffbauer) Article VI (Schiffbauer) Article VII (Schiffbauer) Article VIII (Schiffbauer) Article IX (Tams) Reservations to the Convention (Tams) Article X (Tams) Article XI (Tams) Article XII (Tams) Article XIII (Tams) Article XIV (Tams) Article XV (Tams) Article XVI (Tams) Article XVII (Tams) Article XVIII (Tams) Article XIX (Tams) Annexes to the Commentary Annex 1: Authentic Treaty Versions Annex 2: The Way Towards the Convention Annex 3: Treaty Participation Annex 4: Treaty Action Annex 5: Definitions of Genocide in the National Legislation of the Member States Index

European yearbook of international economic law 2017

Volume 7 of the EYIEL focusses on critical perspectives of international economic law. Recent protests against free trade agreements such as the Transatlantic Trade and Investment Partnership (TTIP) remind us that international economic law has always been a politically and legally contested field. This volume collects critical contributions on trade, investment, financial and other subfields of international economic law from scholars who have shaped this debate for many years. The critical contributions to this volume are challenged and sometimes rejected by commentators who have been invited to be “critical with the critics”. The result is a unique collection of critical essays accompanied by alternative and competing views on some of the most fundamental topics of international economic law. In its section on regional developments, EYIEL 7 addresses recent megaregional and plurilateral trade and investment agreements and negotiations. Short insights on various aspects of the Transpacific Partnership (TPP) and its sister TTIP are complemented with comments on other developments, including the African Tripartite FTA und the negotiations on a plurilateral Trade in Services Agreement (TiSA). Further sections address recent WTO and investment case law as well as recent developments concerning the IMF, UNCTAD and the WCO. The volume closes with reviews of recent books in international economic law.

Barcelona Traction at 40: The ICJ as an Agent of Legal Development

The article revisits the Barcelona Traction judgment of the International Court of Justice, rendered forty years ago. It evaluates the lasting influence of the Courts pronouncements on the nationality of corporations and on obligations erga omnes, and uses the case to illustrate the Courts role as an influential agent of legal development. In this respect, it identifies a number of factors that can help to explain under which circumstances judicial pronouncements are likely to shape the law.

International investment law and development: bridging the gap

Foreign investment is meant to contribute to the host country’s development, and yet international investment law has often been seen as an obstacle to (sustainable) development. So are investment and development friends or foes? Combining critical reflection and detailed analysis, this timely volume explores the relationship between the two concepts and explores options of harnessing investment for development.

Introduction: Domestic Courts as Agents of Development of International Law

This introductory paper to the symposium hosted by the Leiden Journal of International Law , and edited by the authors, deals with the function of domestic courts as agents for the development of international law. The paper ‘sets the scene’ for the contributions to the symposium, which seek to trace the impact of domestic courts in the development of canonical areas of international law, such as jurisdiction, immunity, state responsibility, the law of international organizations/human rights, and the law of armed conflict/conduct of hostilities. It discusses the formal quality and actual influence of domestic-court decisions on the development of international-law, and introduces the concept of ‘agents’ of international-law development. This is the analytical perspective that the contributions to the symposium adopt.

Amici Curiae im internationalen investitionsschutzrecht

Seit langem wird im internationalen Wirtschaftsrecht uber die Zulassigkeit von sog. amicus curiae briefs, d.h. Schriftsatzen von Freunden des Gerichts, diskutiert.1 Diese Debatte ist Teil der ubergeordneten Frage nach der Moglichkeit offentlicher bzw. gesellschaftlicher Einwirkung auf Streitverfahren des internationalen Wirtschaftsrechts. Sie gibt zudem Aufschluss uber den Charakter der Streitbeilegung, der entweder auf die Schlichtung eines Rechtsstreits beschrankt sein oder aber auch ubergeordneten Zielen (etwa transparenter und somit legitimer Entscheidungsfindung) dienen kann. Die Diskussion uber amici curiae war bislang weitgehend auf das Streitbeilegungsverfahren in der WTO -Rechtsordnung beschrankt,2 und zwar

The Development of International Law by the International Court of Justice

The role played by the International Court of Justice (and, formerly, its predecessor, the Permanent Court of International Justice) in the development of international law has been debated by scholars almost since the establishment of the World Court in 1922. While most agree that the ICJ has an influence in this regard, there is little agreement beyond that. This article, which draws upon a 2013 edited collection of the same name involving studies by leading experts in over a dozen areas of international law, posits some parameters appertaining to the influence of the Court. In short, it is suggested that the answer to the question whether the Court contributes to the development of international law in a meaningful way depends, in large measure, on the particular area of international law. This is so because important factors – including how frequently the ICJ is called upon to consider the area, what other law-determining agents exist in the area and the nature of the applicable international law – vary depending on the subject area. The article tests the proposed parameters through a brief consideration of the ICJ’s influence on the international law regarding the functioning of the United Nations.

Applying Necessity and Proportionality to Anti-Terrorist Self-Defence

Recent years have seen increasing reliance on self-defence as a concept justifying the use of force against armed attacks by terrorists operating from within a foreign state. While the matter has prompted major debates, a good case can be made that contemporary international law now begins to recognise a right of self-defence against attacks by terrorists. (We will refer to this in the following as ‘anti-terrorist self-defence’, meaning a response directed against an attack carried out by a terrorist organisation.) This article deliberately does not rehearse the major debates about the scope of self-defence, but moves beyond them. It seeks to assess whether and how the two main limitations on the exercise of self-defence – namely necessity and proportionality – could be adapted to self-defence outside the inter-state setting. It shows that both limitations do indeed require some adaptation in order to be applied to anti-terrorist self-defence. With respect to necessity, we argue that this adaptation is actually a chance to make sense of a requirement that is of very limited practical relevance in the inter-state setting. As the article shows, necessity can assume a crucial role in the anti-terrorist setting: in order for trans-border uses of force to be necessary, states invoking self-defence must demonstrate that the terrorist threat cannot be repelled by the host state (on whose territory the terrorists are based). As for proportionality, recent debates about anti-terrorist self-defence expose the weaknesses of proportionality as a restraint on self-defence. Construed primarily as a prohibition against excessive force, even in the inter-state setting, proportionality has always been dependent on the nature of the aims pursued in the name of self-defence. Recent anti-terrorist practice suggests that many states are prepared to accept far-reaching uses of force against terrorists. It also suggests that, in applying proportionality, the targeted (or otherwise) character of the response is of crucial importance. The law is clearly in a state of flux, but in debates such as those about Turkeys use of force against the PKK or Israels military operations against Hamas or Hezbollah, one can see the beginning of a process of developing guidelines on proportionality.

International Investment Law and Development: Friends or Foes?

Although there is broad consensus that investment, including foreign investment, can have a positive impact on economic development, the relationship between international investment law and international development law has long been a history of ignorance and mistrust. The literature and jurisprudence on international investment law until recently has largely treated the law of international development in passing. Many works on international development law, in turn, pay no more than lip-service to investment protection. Critics have even seen investment law as an obstacle to sustainable development. Serving as an introduction to the book International Investment Law and Development: Bridging the Gap, the present paper maps out the conceptual relations between international investment law and development and discusses how the existing gap can be bridged through a more comprehensive and integrated vision on investment and development.

Preferential Trade and Investment Agreements: From Recalibration to Reintegration

To assert the dynamic nature of international investment law may have become almost a commonplace. Case law is the obvious motor of development: during the last two decades in particular, awards by arbitral tribunals have redrawn the map of investment law and at times pushed its boundaries, at times prompting criticism of ‘arbitral activism’. However, arbitral practice interpreting and applying the existing law is not the only source of dynamism. Equally dynamic are processes of law-making, and notably the complex manner in which States define and redefine the law governing investments abroad. One notable development in this context is the increasingly frequent conclusion of Preferential Trade and Investment Agreements (PTIAs) that complement traditional bilateral investment treaties (BITs) and combine investment and trade rules. It is this source of dynamism that the contributions to the present book evaluate. For a long time, investment and trade were addressed in separate legal regimes. While the regulation of international trade was organized multilaterally (first in the General Agreement on Tariffs and Trade, then in the World Trade Organization (WTO)), substantive rules on investment protection were typically enshrined in bilateral treaties. For a considerable period of time, investment treaties followed the model of the ‘mother of all BITs’, the Draft Convention on Investments Abroad presented by Herman Joseph Abs, then Chairman of Deutsche Bank, and Lord Hartley Shawcross, a former British Attorney-General and then Director of Shell Petroleum Company. From the first-ever BIT concluded between Germany and Pakistan in 1959, fairly succinct provisions would limit the right of States to take foreign property and enshrine a number of general standards of protection. From the late 1960s onwards, these substantive provisions would be complemented by procedures for direct recourse to international arbi-