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At the centre of the controversy surrounding the reversal of awards in the Yukos cases is the provisional application laid down in Article 45 of the Energy Charter Treaty (ECT), which allows a signatory to unilaterally undertake to give affirmative legal effect to the obligations under the ECT on a voluntary and provisional basis. The paper examines the two disparate approaches adopted by the Arbitral Tribunal and the Hague District Court in interpreting the provisional application, namely the ‘all-or-nothing’ approach which necessitates an analysis and determination of whether the principle of provisional application per se is inconsistent with national laws of a signatory and the ‘piecemeal’ approach that requires provisional application to be dependable on the consistency of each provision of the ECT with national laws. The paper further scrutinises the effect that should be given to the provisional application of the ECT and maintains that the controversy has the potential to generate intricate tensions between the finality and rectification of arbitral awards and between international arbitral autonomy and judicial scrutiny instrument, and will have a conclusive impact on the fate of the petition of the Russian Federation.
Helin M Laufer
This paper will critically analyse the International Committee of the Red Cross’ new weapons review and emphasise the importance of considering human rights in the assessment of the legality of weapons. Further, the paper will illustrate this practically by analysing the legality of drones and killer robots from the perspective of the right to life and the prohibition against torture and cruel, inhuman and degrading treatment.
Letizia Lo Giacco
Based on the ever-increasing interpretation and application of international law by domestic courts, this paper offers an insight into the practices of judicial citation of international and domestic jurisdictions while adjudicating international criminal law related matters. The paper considers selected instances of judicial citation and operates a prima facie distinction between judicial citation as a finding device and as a justification exercise. It is argued that domestic courts rely on international judicial decisions primarily as a finding device whilst international case law deals with domestic judicial decisions in the realm of justification. The analysis of this material triggers reflections on the relevance of judicial citation for the doctrine of sources of international law, inasmuch as it adds to the formation of normative expectations on subjects of international law, as well as for a scholarly conceptualisation of contemporary international law-making.
Yen Hoang Tran
This case note discusses the recent Award in the South China Sea arbitration and its implications for fisheries management and cooperation in the South China Sea. It argues that by rejecting the validity of the nine-dash line claim, clarifying the maritime entitlements of all the features in the Spratlys, and denouncing a number of Chinese activities in the South China Sea, the Award has remarkably contributed to narrowing the geographical scope of the disputes and thus defining the rights and obligations of States in different maritime areas. Ultimately, the Award has laid the foundation for future regional and bilateral efforts to cooperate, especially those of fisheries management and fisheries management cooperation in the South China Sea.
This article focuses on the normative content of Article 8 of the Convention on the Rights of Persons with Disabilities (CRPD), and examines its implications for the regulation of broadcasting with regards to diversity and free speech. The analysis claims that Article 8 CRPD requires a stricter approach to issues of free speech, in favour of promoting social inclusion for persons with disabilities. The article engages in a comparative examination of EU, French, and UK law on broadcasting to argue that current law and practice (focusing on disability-related complaints) is inadequate to fulfil the obligations imposed by Article 8 CRPD.
The Report of the Parker Committee, formed in 1916 to consider potential reforms to patent law, was not published. It was concerned, in part, with the abuse of the British patent system by foreigners, proposing significant reforms to address the perceived issues. Ultimately, its proposals were the basis of the failed Patents and Designs Bill 1917. Significantly, the Committee considered issues around compulsory licences, licences of right and the patenting of medicinal products (that is, pharmaceuticals). The public records do not include a copy of the final report or all the key memoranda from which the Committee started its work. These are brought together here for the first time.
Edited by Lan Nguyen and Niall O'Connor
Edited by Johanna Gibson
Michael A Becker
On 5 October 2016, the International Court of Justice upheld preliminary objections to its jurisdiction in three separate cases relating to nuclear disarmament brought by the Republic of the Marshall Islands. India, Pakistan, and the United Kingdom – the three respondent States – argued that the absence of a dispute with the Marshall Islands when the cases were filed meant that the Court lacked jurisdiction to consider the claims. In each case, a narrow majority of the Court agreed. These judgments brought to a halt the legal actions mounted by the tiny Marshall Islands against three nuclear powers. They also consolidated a trend in the Court's approach to the determination of whether a dispute exists for the purpose of the exercise of jurisdiction. In addition, the judgments sparked debate over whether individual judges cast their votes in line with the preferences of their home governments or sought to protect the interests of powerful States. This article provides an overview of the proceedings and the parties’ claims (Part 2). It then analyses the Court's reasoning with respect to whether a dispute was present (Part 3) and explains how the Court's approach to the ‘dispute requirement’, a means to protect the judicial function, has taken a wrong turn (Part 4). The article next challenges the proposition that the voting record in the Nuclear Disarmament judgments should be interpreted to support the proposition that judges vote in accordance with national interest (Part 5) before offering some concluding thoughts on the wisdom of the decision by the Marshall Islands to bring these cases, which invoked claims that may not have been amenable to judicial solutions (Part 6).