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  • Author: Lucas Lixinski
  • Publication Date: 08-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The article examines the jurisprudence of the Inter-American Court of Human Rights in several areas of adjudication which initially did not fall under the instrument, such as environmental rights, international humanitarian law, and investors' rights. In all these areas, the Court has used instruments 'foreign' to the Inter-American system as a means to expand the content of rights in the American Convention. As a result, the umbrella of protection of this instrument, and the reach of the Court, is far greater than originally envisaged. After analysing the specific provision on interpretation of the American Convention on Human Rights as compared to the equivalent mechanisms in the Vienna Convention on the Law of Treaties, the article analyses several case studies of expansionism in the case law of the Court, asking throughout the analysis the question whether this helps the unity or the fragmentation of international law. The article argues that this exercise in expansionism, albeit imperfect, eventually contributes to the unity of international law. In this sense, this expansionism happens within controlled boundaries, and the use of external instruments is more of a validation of findings the Court could make based solely on the Inter-American instruments, rarely creating new rights.
  • Topic: Human Rights, International Law
  • Political Geography: America, Vienna
  • Author: Dapo Akande, Sangeeta Shah
  • Publication Date: 11-2010
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: This article examines the extent to which state officials are subject to prosecution in foreign domestic courts for international crimes. We consider the different types of immunity that international law accords to state officials, the reasons for the conferment of this immunity and whether they apply in cases in which it is alleged that the official has committed an international crime. We argue that personal immunity (immunity ratione personae) continues to apply even where prosecution is sought for international crimes. Also we consider that instead of a single category of personal immunity there are in fact two types of such immunity and that one type extends beyond senior officials such as the Head of State and Head of Government. Most of the article deals with functional immunity (immunity ratione materiae). We take the view that this type of immunity does not apply in the case of domestic prosecution of foreign officials for most international crimes. However, we reject the traditional arguments which have been put forward by scholars and courts in support of this view. Instead we consider the key to understanding when functional immunity is available lies in examining how jurisdiction is conferred on domestic courts.
  • Topic: Government, International Law
  • Political Geography: America
  • Author: Noemi Gal-Or
  • Publication Date: 02-2008
  • Content Type: Journal Article
  • Journal: European Journal of International Law
  • Institution: European Journal of International Law
  • Abstract: The WTO Appellate Body represents an innovation in international law in that an international adjudication authority now operates as a final instance to hear appeals arising from international arbitral (panel) procedures. It is thereby strongly emulating domestic appellate courts without, however, possessing the characteristics that make appellate courts the institutions of justice that they are. Following this trend in a cutting-edge fashion are several other inter-governmental arrangements that had been either concluded (Central America Free Trade Agreement (CAFTA), the Olivos Protocol in the Southern Common Market (Mercosur)) or proposed (the US Congresses' 2002 Trade Promotion Authority Act, the ICSID Discussion Paper of 22 October 2004, the third draft Free Trade Area for the Americas). They embrace the concept of a permanent international instance for appeal from arbitral awards, particularly regarding investment agreements including also disputes arising between the state (public) and the individual legal person (private).
  • Topic: International Law, World Trade Organization
  • Political Geography: America