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Abstract: This chapter examines post-judgment procedures in international law that aim at (or can be used for) compliance adjudication and the applicable remedies. Specific procedures for compliance adjudication exist in regional trade agreements as well as in some multilateral treaties establishing adjudication mechanisms. Additionally, ad hoc agreements to submit disputes to adjudication sometimes permit adjudication on implementation or compliance. States have occasionally resorted to these provisions. A few ICs, and in particular the Inter-American Court of Human Rights, have themselves established the permissibility of compliance adjudication. In a few cases, states have sought to employ requests for interpretation to obtain rulings on compliance. The chapter concludes by considering the permissible scope of review and the remedies applicable at the compliance stage, including the lawfulness of remedy repetition and remedy escalation.
This chapter discusses the legal capacity of a company to enter contracts. We discuss how companies enter contracts through agents and the statutory assumptions that protect third parties when dealing with companies. We also discuss pre-incorporation contracts.
There are several competing policy issues in this area of law. It is important that companies can enter contracts easily and be bound by their obligations. It is also important that third parties are not prejudiced if the internal requirements of a company in terms of capacity or authority to act as the company are not complied with. Both the law of contract and the Corporations Act seek to balance these issues—sometimes in interesting ways. It is useful to keep these policy perspectives in mind when studying this area of law.
The chapter outlines the distinct features and challenges of the legal regimes for the cooperation by states with international criminal jurisdictions. State compliance with the tribunals’ orders or requests for cooperation is key to their effective functioning absent direct law-enforcement and given the necessary reliance upon national authorities for executing arrests, obtaining evidence, enabling the collection of evidence, carrying out coercive measures, enforcing sentences, and so on. While being in theory more stringent than the ‘horizontal’ schemes for inter-state cooperation in criminal matters, the cooperation regime remains the Achilles heel of international criminal justice in the lack of failproof mechanisms for compelling compliance. The chapter sets out the scope, parameters, and addresses of the obligations to cooperate with UN ad hoc tribunals and the International Criminal Court; the extent to which such obligations can be allowed to prevail over conflicting duties; and the ability of parties in the proceedings to seek cooperation from the respective duty-bearers. It also discusses issues arising in connection with the cooperation for the arrest and surrender of suspects and related to other forms of assistance to international criminal jurisdictions, as well as the challenges of enforcing cooperation obligations and addressing non-compliance.
The significance of emotions is often implicitly addressed in norm research. Some International Relations (IR) scholars, for example, suggest a regulatory function of emotions when it comes to norm-based behaviour, norm compliance, norm persuasion, and norm contestation. Yet, the literature on norms often takes these affective dynamics for granted without making them explicit. This contribution seeks to address this imbalance by examining the relationship between emotions (as moral value judgements) and norms (as collective expectations about appropriate behaviour). Specifically, we extend the current analytical focus by proposing a framework for the empirical investigation of emotional resonance in norm research. We argue that emotional resonance is crucial to the impact and enforcement of international norms because emotions assign specific value to norms within normative orders. We identify pathways and build bridges between norm research and research on emotions in IR and develop a theoretical model to show how emotional resonance is helpful for explaining failures of norm compliance. The way in which the absence of emotional resonance facilitates non-compliance is illustrated by the example of the Bush administration’s reaction to torture allegations in Abu Ghraib and Guantanamo.
Edited by
Nevena V. Radonjić, State University of New York Upstate Medical University,Thomas L. Schwartz, State University of New York Upstate Medical University,Stephen M. Stahl, University of California, San Diego
This chapter examines the role potentially played by three types of international bodies in relation to compliance with science-based treaties: non-compliance mechanisms under a treaty system; scientific committees (and other treaty bodies); and international courts or tribunals. The focus on ‘science-based’ treaties stems from the unique nature of the compliance issues that may arise in the context of treaties that govern complex technical or scientific subject matters. These three kinds of international bodies are compared to examine how they may operate in conjunction with one another, to ensure compliance of States parties with treaty obligations.
The Escazú Agreement has brought a myriad of environmental rights and duties to Latin America and the Caribbean (LAC), including the recognition of a right to a healthy environment and rights of environmental defenders. As a new agreement, the task of implementing the Escazú Agreement still lies ahead. Significantly, a non-judicial, non-punitive, consultative and transparent Committee to support Implementation and Compliance was established as a subsidiary body of the Conference of the Parties to promote implementation. Concomitantly, the Inter-American Court of Human Rights recognised an autonomous right to a healthy environment, establishing it as directly justiciable within the Inter-American System of Human Rights (IASHR). This chapter draws on comparative law to understand the non-compliance and judicial mechanisms available under the IASHR and Escazú, with an especial focus on the right to a healthy environment. Given the broad reach of the regional recognition available in LAC, what are the best mechanisms to use the right to prevent environmental harm? And how does this broad endeavour relate to the need to ensure that parties comply with the Escazú Agreement?
Studies of political persuasion often use an exogenous encouragement as an instrument for persuasive messaging. However, for some people, such encouragement is insufficient, while for others, it is unnecessary. These individuals are excluded from methods that only estimate a treatment effect among compliers. Using the marginal treatment effect framework, we extend research finding that exposure to West German television increases support for communism. We find that, because of self-selection, for those who watch West German TV regardless of signal quality, i.e. always-takers, cutting off West German television would have increased support for communism. Our extrapolation shows that media choices reinforce, rather than mollify, political preferences.
Protected areas are under immense pressure to safeguard much of the remaining global biodiversity and can be strained by unpredicted events such as the Covid-19 pandemic. Understanding the extent of the effects of the pandemic on protected area management and conservation outcomes is critical for recovery and future planning to buffer against these types of events. We used survey and focus group data to measure the perceived impact of the pandemic on protected areas in Mexico and outline the pathways that led to these conservation outcomes. Across 62 protected areas, we found substantial changes in management capacity, monitoring and tourism, and a slight increase in non-compliant activities. Our findings highlight the need to integrate short-term relief plans to support communities dependent on tourism, who were particularly vulnerable during the pandemic, and to increase access to technology and technical capacity to better sustain management activities during future crises.
This chapter concludes this book by exploring the success, limitations and future global outlook of the pan-European UNECE environmental regime including challenges for future non-UNECE accession, drawing upon an unparalleled seventy years of experience supporting international law on transboundary watercourses and freshwater ecosystems. From the key findings, this book draws a series of overarching and cross-cutting insights into the rising impact and contribution of the UNECE regime to the clarification and development of international law, which also raises outstanding areas for future research. It explores questions of legitimacy as the UNECE regime moves towards its new global role. This research bears in mind the importance of distinguishing policy arguments for signing up to the UNECE regime with legal arguments. The problem arising from a legal perspective is to ask whether it is good legally when international courts or international institutions endorse a regionally specific detailed regime as global law? This analysis demonstrates that the UNECE environmental instruments were never intended to be geographically exclusive and have also already been co-developed by non-UNECE countries for some time. This research supports the UNECE’s endeavour to embrace a global role but cautions that a strong mandate from non-UNECE countries must drive this process.
Instrumental-variable (IV) estimation is an essential method for applied researchers across the social and behavioral sciences who analyze randomized control trials marred by noncompliance or leverage partially exogenous treatment variation in observational studies. The potential outcome framework is a popular model to motivate the assumptions underlying the identification of the local average treatment effect (LATE) and to stratify the sample into compliers, always-takers, and never-takers. However, applied research has thus far paid little attention to the characteristics of compliers and noncompliers. Yet, profiling compliers and noncompliers is necessary to understand what subpopulation the researcher is making inferences about and an important first step in evaluating the external validity (or lack thereof) of the LATE estimated for compliers. In this letter, we discuss the assumptions necessary for profiling, which are weaker than the assumptions necessary for identifying the LATE if the instrument is randomly assigned. We introduce a simple and general method to characterize compliers, always-takers, and never-takers in terms of their covariates and provide easy-to-use software in R and STATA that implements our estimator. We hope that our method and software facilitate the profiling of compliers and noncompliers as a standard practice accompanying any IV analysis.
In 2009, the International Criminal Court (ICC) stepped into uncharted waters as it issued its first arrest warrant for a sitting head of state, then President of Sudan Omar Al-Bashir. Following the UN Security Council's referral of the situation in the Darfur region of Sudan to the ICC, Al-Bashir was charged by the Court with war crimes and crimes against humanity, and in 2010, he was also charged with genocide. As a consequence, all of the states parties to the Rome Statute had a duty to arrest Al-Bashir. Several states have nonetheless failed to arrest him during country visits, allowing Al-Bashir to evade the ICC. This has given rise to a number of cases before the ICC Chambers, including this Appeals Chamber judgment regarding the Hashemite Kingdom of Jordan.
This chapter provides an overview of global poverty and the debate on transnational socioeconomic justice. It begins by examining the current state of global poverty and the argument that it is in decline; it finds reason to be cautious about optimistic narratives on the decline of poverty. It then looks at global inequality and the uneven distribution of wealth between the human population. It then returns to look at poverty as an existential experience and how it is corrosive to a minimally acceptable human life.
It then considers the debate on transnational socio-economic justice between cosmopolitans and their critics. It provides a general distinction between ideal and non-ideal theory.It settles on a minimalist position as its point of departure for the injustice of global poverty. It argues that all sides have neglected the problem of intransigent non-compliance. There is little likelihood that compliance with even minimal duties of justice will occur in the near future. This raises the question of what the victims of injustice should do when there is no remedy on offer.
On July 6, 2017, Pre-Trial Chamber II of the International Criminal Court (the Court or ICC)—composed of Judges Tarfusser, Perrin de Brichambaut, and Chung—held that South Africa violated the Rome Statute of the ICC (Rome Statute) by failing to arrest and surrender to the Court President Omar Al-Bashir of Sudan when he visited the country in June 2015. However, the Court did not refer the matter to the ICC Assembly of States Parties (ASP) or the United Nations Security Council (UNSC) pursuant to Article 87(7) of the Rome Statute. The decision added South Africa to a list of ICC state parties that have failed in their Rome Statute obligations with respect to the incumbent head of state of Sudan. It also marked the first time that the ICC Office of the Prosecutor (OTP), all ICC states parties, and the United Nations (UN) were invited to present their views and argue fully what is perhaps the most legally contentious and politically sensitive issue that the ICC has faced in its history.
Objective – To provide a relatively non-technical review of recent statistical research on the analysis and interpretation of the results of randomised controlled trials in which there are possibly all three of the following types of protocol violation: non-adherence to allocated treatment, contamination (that is, patients receiving treatments other than the one to which they were allocated) and attrition (missing outcome data). Methods – The estimation methods involve the use of potential outcomes (counterfactuals) in the definition of a causal effect of treatment and in drawing valid inferences concerning its size. Results – The methods are explained through the use of simple arithmetical expressions involving the counts from three-way contingency tables (Outcome by Treatment Received by Random Allocation). Illustration is provided through the use of a hypothetical data set. Conclusions – Recent advances in statistical methodology enable one to estimate treatment effects from the results of randomised trials in which the treatment actually received is not necessarily the one to which the patient was allocated. These methods allow one to make adjustments to allow for both non-compliance and loss to follow-up. Even for such a 'broken' randomised trial, inference concerning causal effects is safer than that from data arising from an observational study that never involved random allocation in the first place.
As far as the topic of ‘necessity and human rights’ is concerned, considerations informed by necessity mainly play a role as grounds for restricting or derogating from human rights on the basis of primary norms contained in international human rights treaties, rather than on the basis of the secondary necessity norm set out in Article 25 of the ILC Articles. The arguably exhaustive treatment of necessity-informed restrictions and derogations in those treaties largely precludes invocation of the general defence of necessity under the law of State Responsibility. Indeed, the drafters have already factored in necessity when drafting human rights treaties. In so doing, they have incorporated necessity into the law itself as a justification for limitations to human rights, thereby excluding reliance on a broader concept of necessity outside this framework. Beyond the human rights treaties, for that matter, States are very hesitant to invoke necessity as an excuse, as this would amount to admitting that their conduct was in fact unlawful (although excusable). Apart from that, ‘human rights’ may possibly qualify as an ‘essential interest’ excusing non-compliance with non-human rights related international law obligations, but it can be said that the notion of jus cogens may be a more potent tonic to set aside ‘incompatible’ lesser norms of international law.
Illegal fishing has detrimental environmental and social impacts, but these effects are difficult to mitigate without reliable estimates of fisher non-compliance. Methods used by fisheries managers to estimate illegal fishing often require indirect estimation of poaching using biological, economic or sociological indicators. This study presents a unique application of the randomized response technique (RRT) for direct estimation of non-compliance in fisheries to the Northern California recreational red abalone (Haliotis rufescens) fishery. An anonymous paper-based compliance and sociodemographic survey of recreational fishers in Sonoma and Mendocino Counties estimated 29% non-compliance with the daily take limit, 23% with the minimum size limit, 19% with licensing laws and 15% with the annual take limit. RRT results also indicated how different sociodemographic characteristics related to non-compliance. Visitors had higher non-compliance rates than local fishers for all regulations except daily take limits, which an estimated 72% of locals violated versus 18% of visitors. High fisher awareness of regulations, fisher age, income and fishing experience did not appear to influence illegal take. RRT is a powerful tool which can aid conservation managers in prioritizing action.
The principle of judicial precedent set out by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia raises the five following issues. (i) Is the Appeals Chamber bound by its previous decisions? (ii) Are the trial chambers bound by Appeals Chamber decisions on both legal and factual issues? (iii) Are the trial chambers bound by the decisions of other trial chambers? (iv) Is the Appeals Chamber of the ICTY bound by the decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) and vice versa? (v) Are the trial chambers of the ICTR bound by the decisions of the ICTY Appeals Chamber and vice versa? The author of this article aims to show that the Appeals Chambers, most trial chambers and individual judges of the International Criminal Tribunals comply with the principle of judicial precedent. However, the principle of judicial precedent is arguably weak, because it was established by case law only. The author also intends to demonstrate that the trial chambers and an individual trial judge of the ICTY have recently departed from the practice of judicial precedent in sensitive legal areas, that is (i) the test to be applied to a motion for a judgement of acquittal; (ii) the issue of evidence; (iii) the standard to be applied to a motion for cross-access to confidential documents in other cases; and (iv) the issue of provisional release.