Abstract: Clémence Varin and Véronique Guèvremont The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005 Convention) was adopted by UNESCO’s General Conference in Paris on October 20, 2005. The objectives taken on by the Parties include acknowledging the specific nature—economic and cultural—of cultural activities, goods and services, the reaffirmation of their sovereign right to adopt or implement the policies and measures they deem appropriate for the protection and the promotion of the diversity of cultural expressions, as well as reinforcing international cooperation in order to achieve more balanced cultural exchanges. Seen as a response to the failure of the cultural exception of the 90s, the 2005 Convention is nevertheless criticized soon after its adoption due to its low level of constraint. However, 15 years later, an overview of the Parties’ practices results in a positive assessment of the implementation of this treaty for which the commitments largely exceed the framework of the relation between commerce and culture. The data collected due to the performance of the follow-up mechanisms indeed demonstrates that the Parties rely abundantly on the 2005 Convention to undertake diverse initiatives aimed at achieving the treaty’s objectives. These actions, translating changes operated by states on their own territories or within the relations they maintain with one another, are indicative of the effectivity of this legal instrument that is only weakly binding.
Abstract: Nicolas Gervais and André-Philippe Ouellet This paper explores the Multi-party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the Dispute Settlement Understanding (hereafter the “MPIA”), aimed at overcoming the paralysis of the Appellate Body of the World Trade Organization. Following a brief historical overview, the MPIA and its annexes will first be outlined. Subsequently, the MPIA will be analyzed in the light of “classic” dispute settlement, and some questions of judicial policy raised by this provisional arrangement will be identified. Albeit mirroring in many ways the proceedings before the Appellate Body, the MPIA incorporates recommendations from the Walker process, which envisaged various solutions to the complaints of certain Members against the Appellate Body.
Abstract: Ayad Yasin Husein Kokha This paper explores the status of Iraq’s most vulnerable people, who have been disproportionately affected by gross human rights violations, and the applicability of the offence of genocide to such violations following the deterioration of the security situation within Iraqi territories under the control of so-called Islamic State of Iraq and the Levant (ISIL). The paper examines the legal concepts of “genocide” and “minority” at the international and internal levels. It identifies heinous acts committed against Iraqi minorities, characterizes the extent to which such acts can be categorized as genocide, and explores the applicable provisions of international criminal law (ICL). The paper employs an analytical-empirical methodology, for it explains the legal texts, accompanied with case law, and compares them with the on-ground status, in addition to data gathering. In terms of the legal context, the paper looks specifically at ICL; in terms of subject, it is restricted to the large-scale killings and other heinous acts perpetrated by ISIL against certain Iraqi minorities, particularly Yazidis, Christians, Turkmans, Kakayis, and Shabaks, that may amount to genocide or other international crimes such as crimes against humanity or war crimes. It is also restricted geographically and chronologically, to certain northern and central areas of Iraq during the period of armed conflict (2014 to 2017) between the Iraqi and Kurdistani governments on the one hand, and ISIL on the other. The main objective of this paper is to study the situation of Iraqi minorities and to monitor grave violations of their rights, specifically regarding the crime of genocide, in order to identify the best legal and judicial measures for intensifying internal and international cooperation in regard to prosecuting perpetrators, implementing the rules of ICL effectively, and eventually protecting these defenceless minorities by avoiding the future recurrence of such crimes.
Abstract: Jordan Goulet Since 2017, more and more voices have been raised against the legitimacy of the International Criminal Court to prosecute and sentence perpetrators of international crimes (genocide, war crimes, crimes against humanity and aggression). Several States have initiated withdrawal procedures to leave the Court in order to show their dissatisfaction towards the management of judicial cases. Gambia, South Africa and Burundi are the instigators of the withdrawal movement. These countries affirm that the Court is not impartial because the judicial cases concern mainly Africans. In addition, there would be criminal impunity of Western countries (United States, Israel, United Kingdom…) that would avoid international justice. By a detailed analysis of the texts of the Court, a set of legal and media literature and the fundamental principles of that jurisdiction, the purpose of the study is to establish the basics of the Court which constitute the unifying elements of its legitimacy. Thus, the study focuses on the current existence of the Court, but also on its possible future in order to guard against eventual contestations of its legitimacy by member countries, and thus at the same time to reinforce its main mission, the fight against criminal impunity from universal membership from States.
Abstract: Anaclet Nzohabonayo The creditors and shareholders' interests vested in public limited company are less opposed than they appear despite the differences that characterize them. The first does not exist without the second and inversely. This reflection argues that only their competing protection constitutes the bedrock of their fruitful cohabitation. This analysis examines how the legislation studied ensure "peaceful" coexistence of the main actors’ interests of the public limited company. It examines the legislation under study in order to contribute to the ongoing doctrinal debate whose comments may cause their rereading by decision makers. In turn, the study clarifies the principles whose understanding helps to guarantee the survival and the financial performance of the public limited company. To illustrate these developments, the analysis uses a comparison of the provisions of the OHADA Uniform Act relating to the law of commercial companies and the economic interest grouping and of the Burundian Code of Private and Public Participation Companies.
Abstract: Moise Jean An examination of the concept of the rule of law in the practice of international actors reveals that it does not function as a formal, autonomous and concrete technique. States use the term to express all kinds of claims, while international organizations use it in a very diverse and contradictory way. As for its objectives and purposes, the analysis shows that the rule of law cannot, as it stands, achieve universal and disinterested objectives. States use the concept strategically to defend and promote preferences and aspirations, while international organizations use it to impose a political and governance model. Under these circumstances, far from being a shared imperative, the rule of law in international politics is in fact a means of legitimizing political and functional objectives.
Abstract: Patient Mpunga Biayi This article analyzes the issue of the United Nations’ Security Council interventions in human rights matters. Through reviewing the different Security Council resolutions, this article demonstrates that the Council has integrated human rights as a component of collective security in two ways. First, the Council qualifies massive human rights violations as a “threat against international peace and security,” as long as they have an impact on security and an international dimension. Second, the Council broadened the concept of “international peace and security” for the purpose of simultaneously addressing the different notions of international security, human rights, and development. Collective security is thus extended to include the “human security” and “responsibility to protect” concepts. However, this article finds that the Council’s approach is somewhat limited. The use of the San Francisco Charter’s Chapter VII as concerns massive and systematic human rights violations is entirely selective. The Council is lacking a program for the inclusion of human rights in its interventions. If it does not fully and completely integrate human rights in its resolutions and deliberations, the Council risks witnessing its legitimacy decrease even further.
Abstract: Pascal Imhof This contribution outlines the current legal position of the military uses of outer space according to public international law. The major steps of the space race, its uses for military purposes, and the current military technologies used in this singular environment are first briefly presented. The main features of international space law are also succinctly depicted. Through a critical interpretive exercise of the relevant provisions of international space law, the law of arms control, general international law, and international humanitarian law treaties, this article demonstrates how the militarization of outer space is still lawful today. It also shows how the weaponization of space remains, in spite of some specific prohibitions, virtually licit. The UN bodies being currently deadlocked and unable to clarify the legal situation and regarding the very limited contributions of soft law instruments in this area, only initiatives emerging from the civil society, such as the McGill and the Woomera manuals, seem to be able to clarify the lex lata regarding military uses of outer space in the near future.
Abstract: Maël Foucault, André-Philippe Ouellet and Stella Warnier One of the most pressing issues affecting the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) is the growing number of invocations by Members of the security exceptions enshrined in Article XXI of the 1994 General Agreement on Tariffs and Trade (GATT). The conclusions brought forward by the Panel in the dispute Russia—Traffic in Transit constitute the first WTO interpretation of the GATT security exceptions. The Panel managed to draw a fine line between the imperative of trade liberalization and the protection of Members’ essential security interests. In turn, considering amongst others the invocations of the exception to justify tariffs on steel and aluminium by the United States, this first interpretative milestone needs to be examined in its political dimension. Indeed, in reaction to the current instability of the multilateral trading system, the Panel endorsed a stabilizing function, aiming to guarantee the efficiency of the system. As such, the Panel in Russia—Traffic in Transit denied Members full discretion as regards security exceptions, explicitly rejecting a “non-justiciability” scenario. The importance of the Panel’s report lies in the argumentative and textual construction thereof, which aims to limit potential abuse as regards Member’s invocation of the exceptions at times of instability. To fully appreciate the significance of the report, the article will proceed in three steps. First, an analysis of the arguments brought forward by disputing and third parties in Russia—Traffic in Transit will help to contextualize the conclusions reached by the Panel, which will accordingly highlight the political mechanisms of interpretation underlying the interpretative practice of the DSB’s organs. Finally, the notions of judicial activism and the legal weight to be given to the Panel’s conclusions in Russia—Traffic in Transit will be examined in relation to ongoing disputes. The growing invocation by Members of security exceptions takes place against the backdrop of numerous challenges affecting the WTO, one of the direst being the paralysis of the Appellate Body as of December 2019.
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