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i

THE GLOBAL
COMMUNITY
Yearbook of International Law
and Jurisprudence

2018

Edited by
Giuliana Ziccardi Capaldo

1
ii

1
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of
excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark
of Oxford University Press in the UK and certain other countries.

Published in the United States of America by Oxford University Press

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© Oxford University Press 2019

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted,
in any form or by any means, without the prior permission in writing of Oxford University Press, or as
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Department, Oxford University Press, at the address above.

You must not circulate this work in any other form

and you must impose this same condition on any acquirer.

Cataloging-in-Publication information is available from the Library of Congress.

ISSN: 1535-9468

ISBN 978–​0–​19–​007250–​6 (2018) (alk. paper)

Printed by Sheridan Books, Inc., United States of America

Note to Readers
This publication is designed to provide accurate and authoritative information in regard to the subject
matter covered. It is based upon sources believed to be accurate and reliable and is intended to be
current as of the time it was written. It is sold with the understanding that the publisher is not engaged
in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is
required, the services of a competent professional person should be sought. Also, to confirm that the
information has not been affected or changed by recent developments, traditional legal research
techniques should be used, including checking primary sources where appropriate.

(Based on the Declaration of Principles jointly adopted by a Committee of the

American Bar Association and a Committee of Publishers and Associations.)

You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com.
iii

Contents

Aims & Scope xiii

Outline of the Parts xvii

EDITORIAL
The Taricco Affair: A Dialogue Between the Deaf and the Dumb. A Proposal to
Strengthen Cooperation Between the ECJ and National Courts 3
Giuliana Ziccardi Capaldo

PART 1: ARTICLES
“External Stakeholder Benevolence”: An Emerging Policy Paradigm in
International Criminal Justice?—​Critical Reflections on the Paris Declaration
2017 and the Oslo Recommendations 2018 on the Efficiency and Legitimacy
of International Courts 21
Michael Bohlander
How to Reconcile Human Rights, Trade Law, Intellectual Property, Investment
and Health Law? WTO Dispute Settlement Panel Upholds Australia’s Plain
Packaging Regulations of Tobacco Products 69
Ernst-​Ulrich Petersmann
The Citizen and the State: A Paradoxical Relation 103
Chris Thornhill

PART 2: NOTES AND COMMENTS

Statehood and Recognition in International Law: A Post-​Colonial Invention 139
Jean d’Aspremont
iv

iv Contents

Misdiagnosing the Human Rights Malaise: Possible Lessons from the Danish
Chairmanship of the Council of Europe 153
Jacques Hartmann
Article 103 of the UN Charter and Security Council Authorizations 165
Robert Kolb
Under Construction: The Euro-​Mediterranean Free Trade Area (EMFTA) 173
Francesco Seatzu

PART 3: IN FOCUS—​G LOBAL POLICIES AND LAW

Demilitarizing Palestine. A Flawed Legal Approach to Middle East Peace 191
Louis René Beres
Illiberal versus Liberal State Branding and Public International Law: Denmark
and the Approximation to Human(itarian) Rightlessness 207
Anja Matwijkiw & Bronik Matwijkiw
A Constitutional-​Driven Change of Heart. ISP Liability and Artificial
Intelligence in the Digital Single Market 237
Oreste Pollicino & Giovanni De Gregorio
Appendix of the Part—​Topics Covered in the Previous Issues (2008–​2017) 265

PART 4: FORUM—​J URISPRUDENTIAL

CROSS-​F ERTILIZATION: AN ANNUAL OVERVIEW
I. Introductory Module—​MISSION AND CONCEPTS 271
I.1 The Continuity of Jurisprudential Cross-​Fertilization in the Case-​Law
of International Tribunals in Their Common Mission of Realization of
Justice, Antônio Augusto Cançado Trindade 273
II. Module—​CRIMINAL LAW—​The Relationship Between International
Criminal Tribunals and Their Relationship with the ICJ or Another
International Court or Arbitral Tribunal 281
II.1 The ICC Appeals Chamber’s Judgment in The Prosecutor v. Bemba
et al.—​A Reminder of the Often Overlooked Value of International
Jurisprudence Concerning Offences Against the Administration of
Justice, Anda Scarlat 283
III. Module—​HUMAN RIGHTS LAW—​The Relationship Between Courts
of Human Rights and Their Relationship with the ICJ or Another
International Court or Arbitral Tribunal 303
III.1 Reparations for Victims of Mass Atrocities: Actual and Potential
Contributions of the Inter-​American Court of Human Rights to the
International Criminal Court, Juan-​Pablo Perez-​Leon-​Acevedo 305
v

Contents v

IV. Module—​INTERNATIONAL AND DOMESTIC LAW—​The

Relationship Between International and Domestic Courts 337
IV.1 Collective Reparations as a Partial Remedy for State-​Perpetrated
Blanket Violations of the Rights of Targeted Child Asylum Seeker
Groups, Sonja C. Grover 339

PART 5: GLOBAL JUSTICE—​D ECISIONS OF

INTERNATIONAL COURTS AND TRIBUNALS IN 2017
Edited by Giuliana Ziccardi Capaldo
Systematic Classification Scheme 371
I. INTERNATIONAL COURT OF JUSTICE 393
I.1 INTRODUCTORY NOTE, John G. Merrills† 395
I.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM
SELECTED CASE LAW, (Giuliana Ziccardi Capaldo) 407
I.2.1 Jadhav Case (India v. Pakistan), Request for the Indication of
Provisional Measures, Order, 18 May 2017 409
Systematic Key Items of the Section 417
II. INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA 419
II.1 INTRODUCTORY NOTE, Tullio Treves 421
II.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM
SELECTED CASE LAW, (Emilio Sessa) 429
II.2.1 Dispute Concerning Delimitation of the Maritime Boundaries
Between Ghana and Côte d’Ivoire in the Atlantic Ocean
(Ghana/​Côte d’Ivoire), Judgment, 23 September 2017 431
Systematic Key Items of the Section 445
III. WTO DISPUTE SETTLEMENT SYSTEM 447
III.1 INTRODUCTORY NOTE, Joanna Gomula 449
III.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM
SELECTED CASE LAW, (Joanna Gomula) 457
III.2.1 Russian Federation—​Measures on the Importation of Live Pigs,
Pork and Other Pig Products from the European Union
(WT/​DS475/​AB/​RW), Appellate Body Report circulated
on 23 February 2017, adopted on 21 March 2017 459
III.2.2 United States—​Certain Methodologies and Their Application
to Anti-​Dumping Proceedings Involving China (WT/​DS471/​
AB/​R), Appellate Body Report circulated on 11 May 2017,
adopted on 22 May 2017 464
III.2.3 United States—​Conditional Tax Incentives for Large Civil
Aircraft (WT/​DS487/​AB/​R), Appellate Body Report
circulated on 4 September 2017, adopted on 22 September 2017 468
vi

vi Contents

III.2.4 European Union—​Anti-​Dumping Measures on Imports of

Certain Fatty Alcohols from Indonesia (WT/​DS442/​AB/​R),
Appellate Body Report circulated on 5 September 2017,
adopted on 29 September 2017 471
III.2.5 Indonesia—​Importation of Horticultural Products, Animals
and Animal Products (WT/​DS477, 478/​AB/​R/​), Appellate
Body Report circulated on 9 November 2017, adopted on 22
November 2017 476
Systematic Key Items of the Section 481
IV. INTERNATIONAL CRIMINAL COURT 483
IV.1 INTRODUCTORY NOTE, Geert-​Jan Alexander Knoops 485
IV.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM
SELECTED CASE LAW, (Anna Buono, Maria Elena Castaldo,
Marco Naddeo, Anna Oriolo, Anna Vigorito) 497
IV.2.1 Situation in Côte d’Ivoire 499
IV.2.1.1 The Prosecutor v. Laurent Gbagbo and Charles
Blé Goudé, Case No. ICC-​02/​11-​01/​15, Trial
Chamber I, Judgment, 19 July 2017 499
IV.2.2 Situation in Darfur 502
IV.2.2.1 The Prosecutor v. Omar Hassan Ahmad Al-​Bashir,
Case No. ICC-​02/​05-​01/​09, Pre-​Trial
Chamber II, Decision, 6 July 2017 502
IV.2.3 Situation in the Republic of Mali 506
IV.2.3.1 The Prosecutor v. Ahmad Al Faqi Al Mahdi, Case
No. ICC-​01/​12-​01/​15, Trial Chamber VIII,
Reparations Order, 17 August 2017 506
IV.2.4 Situation in the Democratic Republic of the Congo 511
IV.2.4.1 The Prosecutor v. Bosco Ntaganda, Case No. ICC-​
01/​04-​02/​06, Trial Chamber VI, Judgment, 15
June 2017 511
IV.2.5 Situation in the Republic of Burundi 514
IV.2.5.1 Decision Pursuant to Article 15 of the Rome Statute
on the Authorization of an Investigation into the
Situation in the Republic of Burundi, Case No.
ICC-​01/​17-​X-​9-​US-​Exp, Pre-​Trial Chamber III,
Decision, 25 October 2017 514
Systematic Key Items of the Section 523
V. INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER
YUGOSLAVIA 525
V.1 INTRODUCTORY NOTE, Rafael Nieto-​Navia 527
V.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM
SELECTED CASE LAW, (Anna Buono, Anna Oriolo) 535
V.2.1 Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak,
Milivoj Petković, Valentin Ćorić and Berislav Pušić, Case No.
IT-​04-​74-​A , Appeals Chamber, Judgment, 29 November 2017 537
Systematic Key Items of the Section 547
vii

Contents vii

VI. COURT OF JUSTICE OF THE EUROPEAN UNION 549

VI.1 INTRODUCTORY NOTE, Antonio Tizzano 551
VI.2 GENERAL COURT 563
VI.2.1 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM
SELECTED CASE LAW, (Federico Bianchi, Carmine Renzulli,
Roberto Soprano, Caterina Tuosto) 565
VI.2.1.1 Michael Efler and Others v. European Commission,
Case T-​754/​14, First Chamber, Judgment, 10
May 2017 567
VI.2.1.2 Mohamed Marouen Ben Ali Ben Mohamed Mabrouk
v. Council of the European Union, Case T-​175/​15,
Fifth Chamber, Judgment, 5 October 2017 570
VI.2.1.3 Marine Harvest ASA v. European Commission,
Case T-​704/​14, Fifth Chamber, Judgment,
26 October 2017 573
VI.2.1.4 Icap plc and Others v. European Commission,
Case T-​180/​15, Second Chamber, Judgment, 10
November 2017 579
VI.2.1.5 Udo Voigt v. European Parliament, Case T-​618/​15,
Fourth Chamber, Judgment, 20 November 2017 583
VI.2.1.6 Coca-​Cola v. EUIPO—​Mitico (Master), Case T-​61/​
16, Eight Chamber, Judgment, 7 December 2017 586
Systematic Key Items of the Section 591
VI.3 COURT OF JUSTICE 593
VI.3.1 LEGAL MAXIMS: SUMMARIES AND EXTRACTS
FROM SELECTED CASE LAW(Sébastien Brisard, Simona
Fanni, Victoria Hanley-​Emilsson, Eirini Pantelodimou, Daniela
Rodríguez Bautista, Caterina Tuosto, Zsofia Varga, Anna Vigorito) 595
VI.3.1.1 Toshiba Corp. v. European Commission, Case
C-​623/​15 P, Eighth Chamber, Judgment, 18
January 2017 597
VI.3.1.2 Commissaire général aux réfugiés et aux apatrides
v. Lounani, Case C-​573/​14, Grand Chamber,
Judgment, 31 January 2017 599
VI.3.1.3 X and X v. État belge, Case C-​638/​16 PPU, Grand
Chamber, Judgment, 7 March 2017 601
VI.3.1.4 A and Others v. the United Kingdom, Case C-​158/​
14, Grand Chamber, Judgment, 14 March 2017 604
VI.3.1.5 Samira Achbita v. Centrum voor gelijkheid van
kansen en voor racismbestrijding, Case C-​157/​15,
Grand Chamber, Judgment, 14 March 2017 607
VI.3.1.6 Asma Bougnaoui v. Association de défense des droits
de l’homme (ADDH), Case C 188/​15, Grand
Chamber, Judgment, 14 March 2017 610
VI.3.1.7 Furkan Tekdemir v. Kreis Bergstraße, Case C-​652/​
15, First Chamber, Judgment, 29 March 2017 612
VI.3.1.8 Sahar Fahimian v. Bundesrepublik Deutschland,
Case C-​544/​15, Grand Chamber, Judgment, 4
April 2017 614
viii

viii Contents

VI.3.1.9 A.S. v. Républika Slovenija, Case C-​490/​16, Grand

Chamber, Judgment, 26 July 2017 617
VI.3.1.10 Khadija Jafari, Zainab Jafari v. Bundesamt für
Fremdenwesen und Asyl, Case C-​646/​16, Grand
Chamber, Judgment, 26 July 2017 621
VI.3.1.11 Intel Corp. Inc. v. European Commission, Case
C-​413/​14 P, Grand Chamber, Judgment, 6
September 2017 627
VI.3.1.12 Slovakia and Hungary v. Council, Case C-​643/​15,
Grand Chamber, Judgment, 6 September 2017 632
VI.3.1.13 Criminal Proceedings against Giorgio Fidenato
and Others, Case C-​111/​16, Third Chamber,
Judgment, 13 September 2017 635
VI.3.1.14 Toufik Lounes v. Secretary of State for the Home
Department, Case C-​165/​16, Grand Chamber,
Judgment, 14 November 2017 639
VI.3.1.15 Coty Germany GmbH v. Parfümerie Akzente
GmbH, Case C 230/​16, First Chamber,
Judgment, 6 December 2017 642
VI.3.1.16 Asociación Profesional Elite Taxi v. Uber Systems
Spain SL, Case C-​434/​15, Judgment, Grand
Chamber, 20 December 2017 646
Systematic Key Items of the Section 649
VII. EUROPEAN COURT OF HUMAN RIGHTS 651
VII.1 INTRODUCTORY NOTE, Guido Raimondi 653
VII.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM
SELECTED CASE LAW, (Anna Buono, Simona Fanni, Adriana Fillol
Mazo, Ana Cristina Gallego Hernández, Yolanda Gamarra, Diana Marín
Consarnau, Juan Francisco Moreno Domínguez, Lucía Ione Padilla, Ángel
Tinoco Pastrana, Antonio-Jesus Rodríguez-Redondo, Anna Vigorito) 669
VII.2.1 Case of Hutchinson v. the United Kingdom, Application No.
57592/​08, Grand Chamber, Judgment, 17 January 2017 671
VII.2.2 Case of Paradiso and Campanelli v. Italy, Application No.
25358/​12, Grand Chamber, Judgment, 24 January 2017 675
VII.2.3 Case of Khamtokhu and Aksenchik v. Russia, Applications
Nos. 60367/​08 and 961/​11, Grand Chamber, Judgment,
24 January 2017 678
VII.2.4 Case of K2 v. United Kingdom, Application No. 42387/​13,
First Section, Decision, 7 February 2017 681
VII.2.5 Case of De Tommaso v. Italy, Application No. 43395/​09,
Grand Chamber, Judgment, 23 February 2017 684
VII.2.6 Case of Cerovšek and Božičnik v. Slovenia, Applications Nos.
68939/​12 and 68949/​12, Fourth Section, Judgment, 7
March 2017 687
VII.2.7 Case of A.-​M.V. v. Finland, Application No. 53251/​13, First
Section, Judgment, 23 March 2017 690
ix

Contents ix

VII.2.8 Case of Chowdury and Others v. Greece, Application No.

21884/​15, First Section, Judgment, 30 March 2017 694
VII.2.9 Case of Medžlis Islamske Zajednice Brčko and Others v. Bosnia
and Herzegovina, Application No. 17224/​11, Grand
Chamber, Judgment, 27 June 2017 696
VII.2.10 Case of Moreira Ferreira v. Portugal (No. 2), Application No.
19867/​12, Grand Chamber, Judgment, 11 July 2017 699
VII.2.11 Case of Bărbulescu v. Romania, Application No. 61496/​08,
Grand Chamber, Judgment, 5 September 2017 705
VII.2.12 Case of Fábián v. Hungary, Application No. 78117/​13,
Grand Chamber, Judgment, 5 September 2017 710
VII.2.13 Case of Becker v. Norway, Application No. 21272/​12, Fifth
Section, Judgment, 5 October 2017 715
VII.2.14 Case of Merabishvili v. Georgia, Application No. 72508/​13,
Grand Chamber, Judgment, 28 November 2017 718
VII.2.15 Case of S.F. and Others v. Bulgaria, Application No. 8138/​
16, Fifth Section, Judgment, 7 December 2017 722
VII.2.16 Case of Chiragov and Others v. Armenia, Application No.
13216/​05, Grand Chamber, Judgment, 12 December 2017 725
VII.2.17 Case of Lopes de Sousa Fernandes v. Portugal, Application
No. 56080/​13, Grand Chamber, Judgment,
19 December 2017 728
Systematic Key Items of the Section 733
VIII. INTER-​AMERICAN COURT OF HUMAN RIGHTS 735
VIII.1 INTRODUCTORY NOTE, Eduardo Ferrer Mac-​Gregor Poisot 737
VIII.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM
SELECTED CASE LAW, (Harold Miñarro Escalona, Julie Recinos) 745
VIII.2.1 Caso Zegarra Marín v. Perú, Excepciones Preliminares,
Fondo, Reparaciones y Costas, Sentencia de 15 de
Febrero de 2017, Série C No. 331 746
VIII.2.2 Caso Favela Nova Brasília v. Brasil, Excepciones
Preliminares, Fondo, Reparaciones y Costas, Sentencia
de 16 de Febrero de 2017, Série C No. 333 749
VIII.2.3 Caso Acosta y Otros v. Nicaragua, Excepciones
preliminares, Fondo, Reparaciones y Costas, Sentencia
de 25 de Marzo de 2017, Série C No. 334 754
VIII.2.4 Caso Lagos del Campo v. Perú, Excepciones
Preliminares, Fondo, Reparaciones y Costas, Sentencia
de 31 de Agosto de 2017, Série C No. 340 758
VIII.2.5 Medio ambiente y Derechos Humanos (Obligaciones
estatales en relación con el medio ambiente en el marco
de la protección y garantía de los derechos a la vida y a
la integridad personal—​interpretación y alcance de los
artículos 4.1 y 5.1, en relación con los artículos 1.1 y 2
de la Convención Americana sobre Derechos Humanos),
Opinión Consultiva OC 23/​17, 15 de Noviembre de
2017, Série A No. 23 765
x

x Contents

VIII.2.6 Identidad de género, e igualdad y no discriminación a

parejas del mismo sexo (Obligaciones estatales en relación
con el cambio de nombre, la identidad de género, y los
derechos derivados de un vínculo entre parejas del mismo
sexo—interpretación y alcance de los artículos 1.1, 3,
7, 11.2, 13, 17, 18 y 24, en relación con el artículo 1 de
la Convención Americana sobre Derechos Humanos),
Opinión Consultiva OC-​24/​17, 24 de Noviembre de
2017, Série A No. 24 776
Systematic Key Items of the Section 789
IX. INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT
DISPUTES 791
IX.1 INTRODUCTORY NOTE, August Reinisch 793
IX.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM
SELECTED CASE LAW, (Jose Magnaye) 809
IX.2.1 Bear Creek Mining Corporation v. Republic of Peru, ICSID
Case No. ARB/​14/​21, Award, 30 November 2017 811
IX.2.2 Eiser Infrastructure Limited and Energia Solar Luxembourg
S.À.R.L. v. Kingdom of Spain, ICSID Case No. ARB/​13/​36,
Award, 4 May 2017 829
IX.2.3 Orascom TMT Investments S.à.r.l. v. People’s Democratic Republic
of Algeria, ICSID Case No. ARB/​12/​35, Award, 31 May 2017 865
Systematic Key Items of the Section 905
X. PERMANENT COURT OF ARBITRATION 907
X.1 INTRODUCTORY NOTE, Diego Mejía-​Lemos 909
X.2 LEGAL MAXIMS: SUMMARIES AND EXTRACTS FROM
SELECTED DECISIONS, (Diego Mejía-​Lemos) 921
X.2.1 WNC Factoring Ltd v. The Czech Republic, PCA
Case No. 2014-​34, Award, 22 February 2017 923
X.2.2 Arbitration between the Republic of Croatia and the Republic of
Slovenia, PCA Case No. 2012-​04, Final Award, 29 June 2017 934
Systematic Key Items of the Section 955

PART 6: RECENT LINES OF

INTERNATIONALIST THOUGHT
Enhancing the Globe’s Governance, Struggling with Research and Politics 959
Thomas G. Weiss
xi

GENERAL EDITOR

GIULIANA ZICCARDI CAPALDO

University of Salerno Hippocratica Civitas

EDITORIAL BOARD

ANTÔNIO AUGUSTO CANÇADO TRINDADE ERNST-​ULRICH PETERSMANN

International Court of Justice, The Hague European University Institute, Florence
EDUARDO FERRER MAC-​GREGOR POISOT AUGUST REINISCH
Inter-​American Court of Human Rights, San José University of Vienna
JOANNA GOMULA WILLIAM A. SCHABAS
University of Cambridge National University of Ireland, Galway
GEERT-​JAN ALEXANDER KNOOPS RAMESH THAKUR
University of Amsterdam Australian National University, Canberra
ANJA MATWIJKIW ANTONIO TIZZANO
Indiana University Northwest Court of Justice of the European Union, Luxemburg
RAFAEL NIETO NAVIA TULLIO TREVES
Pontificia Universidad Javeriana of Bogotá University of Milan
NICHOLAS ONUF GUIGUO WANG
Florida International University Tulane University, New Orleans
THOMAS G. WEISS
City University of New York
ADVISORY BOARD

MOHAMMED BEDJAOUI FRANCO MOSCONI

United Nations University of Parma
MOHAMED BENNOUNA SHIGERU ODA
International Court of Justice, The Hague Tohoku University
ARMIN VON BOGDANDY JOSÉ ANTONIO PASTOR RIDRUEJO
Goethe University Frankfurt Complutense University of Madrid
Max-​Planck-​Institut, Heidelberg FAUSTO POCAR
ROBERTO F. CALDAS University of Milan
Inter-​American Court of Human Rights, San José GUIDO RAIMONDI,
HUGO CAMINOS European Court of Human Rights, Strasbourg
University of Buenos Aires GEORG RESS
ANTONIO CAPALDO Saarland University, Saarbrücken
Catholic University of the Sacred Heart, Milan FRANCISCO REZEK
SERGIO MARIA CARBONE University Center of Brasilia
University of Genoa CHRISTOS ROZAKIS
CHRISTIAN DOMINICÉ University of Athens
University of Geneva PHILIPPE SANDS
PIERRE MICHEL EISEMANN University College London
University of Paris I Panthéon-​Sorbonne MOHAMED SHAHABUDDEEN
RICHARD A. FALK Institut de Droit International
Princeton University HUMBERTO ANTONIO SIERRA PORTO
DIEGO GARCÍA-​SAYÁN Inter-​American Court of Human Rights, San José
Inter-​American Court of Human Rights, San José CHRISTIAN TOMUSCHAT
SHI JIUYONG Humboldt University of Berlin
Foreign Affairs College, Beijing JOE VERHOEVEN
UMBERTO LEANZA University of Paris II Panthéon-​Assas
University of Rome Tor Vergata PHILIPPE WECKEL
PAOLO MENGOZZI University of Nice Sophia-​Antipolis
Court of Justice of the European Union, Luxemburg
FORMER MEMBERS OF THE BOARDS OF EDITORS

M. CHERIF BASSIOUNI † JOHN G. MERRILLS †

DePaul University College of Law, Chicago University of Sheffield
FLORENTINO P. FELICIANO † SHABTAI ROSENNE †
University of the Philippines Institut de Droit International
THOMAS M. FRANCK † ERIC STEIN †
New York University School of Law University of Michigan Law School
HÉCTOR GROS ESPIELL † SOJI YAMAMOTO †
University of Montevideo Tohoku University
PIERO ZICCARDI †
University of Milan

Co-​Managing Editors
DIEGO MEJÍA-​LEMOS ANNA ORIOLO
National University of Singapore University of Salerno
Editorial Assistants
ANNA BUONO
University of Salerno
BRONIK MATWIJKIW
Southeast Missouri State University
xii
xiii

AIMS & SCOPE

Editor’s Note
by Giuliana Ziccardi Capaldo*

The Global Community Yearbook of International Law and Jurisprudence (GCYILJ) is a

peer-​reviewed annual journal, which is included in Scopus and which, so far, has eighteen
editions on its publication record. Over the last two decades, the Yearbook has established
itself as an authoritative resource on the most significant transformations in the world con-
stitutive process.
The Yearbook makes it possible for its readers to monitor the development of the interna-
tional order towards a legal system for a global community. In the process of accomplishing
this goal, it provides detailed insights into the incremental changes that have occurred, and
from several perspectives.
While providing researchers and practitioners with access to a uniquely rich resource
for the study of international jurisprudence, the Yearbook also promotes discussion on cur-
rent issues that impact substantive and procedural aspects of global law. Each contribution
affords the reader with an opportunity to reflect upon a piece of cutting-​edge research.
The Yearbook continues to address, discuss and monitor “the structuring process
of a global community in which a coherent legal system for a universal human society is
being built.” This succinct quote is from the inaugural editorial of this journal (G. Ziccardi
Capaldo, 2001), and it is deliberately chosen to highlight the continuity of the Yearbook’s
overarching theme: global law, global constitutionalism and global governance.
The theoretical parts of the Yearbook (Articles, Notes and Comments, In Focus, Forum)
contain accounts provided by leading scholars and judges from all over the world on cur-
rent and future developments in international law and global policies, as well as trends in
global justice and the impact of judicial pronouncements pertaining to the building of the
new legal world order.
As a platform for continuous analysis and assessment, the Yearbook welcomes interdisci-
plinary contributions too. In 2017 and in recognition of its impact on global law, global con-
stitutionalism and global governance, ethics was listed among those areas and perspectives

* Professor of International Law (Emeritus), University of Salerno, Italy; General Editor.

xiii
xiv

xiv Aims & Scope

that form integral parts of the journal’s process of continuous renewal. This step is, in one
sense, a logical one for the purpose of monitoring the development of the international
order towards a legal system for a global community, albeit ethics currently must be viewed
as an embryonic phenomenon. The Yearbook aspires to respond to exactly such a phenom-
enon, especially since various precursors for its integration appear to contain a promise for
a dynamic pattern.
Concerning continuity, the Yearbook has already celebrated its 15th anniversary. On
that occasion, in 2015, I announced the most recent improvements and the future course
of the journal. In 2017, I mentioned yet more changes. Now, in 2018, I can present the fol-
lowing summary of the steps to enhance the Yearbook going forward as follows.
First, several other distinguished scholars agreed to join the boards (see Editor’s Note,
of this Yearbook 2015), just as we embarked on a number of new projects that are either in
the execution phase or have been completed. Unfortunately, we had to announce the de-
parture of two giants of international law. It was with great sadness that the Yearbook had to
mention the loss of respectively Professor M. Cherif Bassiouni and Professor John Merrills,
authoritative members of the Board of Editors.
Second, the Yearbook has been redesigned. Previously, it was published in two volumes.
The Yearbook now consists of one volume. Besides improving the user experience of the
print version, this change will also improve the e-​book and its Oxford Scholarship Online
(OSO) version. The latter constitutes an important step and tool for the Yearbook.
Third, since 2015, the Yearbook has regularly featured commentaries on the OUPblog
on a variety of topics. The 2017 edition continued this activity with much enthusiasm (see
my post No-​impunity as a Global Constitutional Principle, January 11, 2018 at https://​blog.
oup.com/​2018/​01/​no-​impunity-​constitutional/​).
However, the 2017 edition also introduced a couple of changes to the part 6, entitled
“Recent Lines of Internationalist Thought,” which has otherwise been included in the
Yearbook since 2006. The main objectives of this part are to give an overview and a critical
appraisal of the current international law literature, provide readers with an opportunity to
study and interpret issues from different perspectives, examine different methodologies,
and explore ideas from different cultures. Another novelty for this part concerns the subject
behind the original authorship—​meaning that the Scholar/​Judge who contributes thoughts
and ideas is also talking about his own work. It is customary for somebody in authority to
talk about himself! The Yearbook wishes to utilize this fact and indeed resource as yet an-
other platform for disseminating research findings as well as communicating experiences of
a more practical-​professional nature.
Professor Cançado Trindade’s 2017 contribution was the official inauguration of the
above-​mentioned new features of the part. Being widely recognized for his very creative
ideas and innovative approaches, the choice of Professor Cançado Trindade was a perfect
one for this special occasion. The Yearbook used the form of an “autobiographical essay” to
capture his experiences in different roles, from teaching international law to practicing as
a Judge and President of international courts. It is hardly surprising that one of the main
intentions was and—​after having launched the format successfully—​continues to be to
shine the light on the challenges faced by the emerging world society.
In this edition (2018), the reader will thus be able to enjoy an exciting and intriguing
encounter with Professor Thomas Weiss’s magistral essay for the part 6 in question. In this
piece, the author’s pursuit of global governance is explored both in his capacity as a scholar
and as a practitioner. Scholarly-​analytically, the essay addresses the contemporary reality
of international organizations and multilateral cooperation. However, as former chair of
the Academic Council on the UN System and as a recognized authority on international
organizations, Professor Weiss draws on valuable professional experiences when he focuses
xv

Aims & Scope xv

on the world organization’s under-​appreciated contribution to key ideas, norms, principles,

and standards.
Among the most significant changes concerning parts 4 and 5 that deal with interna-
tional jurisprudence, I would like to address the following:
Beginning with the 2009 edition, the Yearbook has undergone a process of gradual
restructuring to update the part 5 that is now entitled “Global Justice—​Decisions of
International Courts and Tribunals.” This part, divided into sections and primarily devoted
to the highest judicial bodies, continues to report annually on significant international
case law, as systematically ordered by legal maxims. Between 2009 and 2018, we have set
up a new format for “legal maxims” whereby the most important elements of the judicial
decisions are now distilled, while leaving aside the facts of the case as much as is possible.
The extraction of legal maxims from the courts’ decisions, together with their elaboration
and systematic classification, is the core of the uniqueness of the Yearbook. The remarkable
development of the international courts and tribunals has made it increasingly difficult to
follow closely the wealth of case law now emanating from the relevant jurisdictions, without
the help of an intermediary. Therefore, both the originality and utility of the Yearbook lie
precisely in its “intermediation” function—​between case law and international scholars,
practitioners, and students.
The contents of this new edition (2018) have been enriched with the inclusion in the
last mentioned part of a new section devoted to the Permanent Court of Arbitration (PCA),
the oldest global institution that offers a wide range of services for the settlement of in-
ternational disputes. It is a great achievement for the journal to have a continuous pattern
of growth, expansion and innovation together with an established record of high-​quality
publications in the field of international jurisprudence, thereby presenting a wide spectrum
of international case law and varied expert opinions at the highest levels. For this purpose,
it should be mentioned that, as in the past, an Introductory Note, written by distinguished
and internationally renowned academics and judges on each judicial body, provides a syn-
opsis of their activity over the course of the year.
Furthermore, beginning with the 2010 issue, the Yearbook has included the part 4
entitled “Forum—​Jurisprudential Cross-​Fertilization: An Annual Overview.” Using com-
parative analysis, this highlights the interconnections between the decisions of interna-
tional courts and tribunals. The Yearbook is the first academic journal to present an annual
overview of the process of cross-​fertilization between courts. A comprehensive and com-
plete survey by eminent international law scholars exploring, evaluating and documenting
this process has the potential to promote a favourable environment for the courts to ad-
vance judicial cooperation with a view to the possible harmonization of legal principles
governing the global community.
Finally, among the noticeable improvements is the increased online availability of the
Yearbook (which is available on Oxford Scholarship Online:
http://​www.universitypressscholarship.com/​search?isQuickSearch=) as well as the
journal’s new website (at http://​www. globalcommunityyearbook.org/​) that provides much
more information on the journal (including the Archive of the editions from 2001 to date).
This positive development will enable Global Community YILJ to continue to strengthen
its reputation as a leading journal in its field.
I express my warmest thanks to the members of the Editorial and Advisory Boards,
authors and reviewers for their dedicated contributions to the continuing success of the
journal. I extend my thanks to the Oxford University Press team, especially the current ed-
itor, Dennis Gargano who, in addition to taking care of the production of the journal with
great skill and dedication, has been heavily involved in the process of growth and change.
13th December 2018
xvi
xvii

OUTLINE OF THE PARTS

The Yearbook is structured into the following parts:

ARTICLES
This part is devoted to significant doctrinal contributions to international legal theory and
gives priority to works dealing with changes in the rules and structure of the international
community. The aim is to follow the development of the international legal order and the
building of the global community heralded at the end of the second millennium. This part
is at all times open to report on fresh developments and to debate new, and other contra-
dictory, trends.

NOTES AND COMMENTS

This part contains short articles on current issues in international/​global law. In line with the
Yearbook’s orientation, comments addressing international case law are given precedence.

IN FOCUS
Beginning with the 2008 issue, the Yearbook includes a part entitled “In Focus—​Global
Policies and Law,” exploring the globalization of politics, communication, economics,
culture, and the environment, while identifying objectives, programmes, models, public
policy choices and emerging global policies, and considering some of the major issues and
challenges facing the world as a whole, in an attempt to enhance the coordination and har-
monization of norms and procedures and the implementation of global law.

FORUM—​J URISPRUDENTIAL CROSS-​F ERTILIZATION:

AN ANNUAL OVERVIEW
Beginning with the 2010 issue, the Yearbook includes a new part, aiming to compare and
analyse the interconnections between the decisions of international courts and tribunals, as
a way of exploring and examining judicial dialogue and the development of common legal
principles and concepts in all branches of international law.

xvii
xvii

xviii Outline of the Parts

To this end we have chosen to focus on the areas of international law in which different
international courts operate; therefore, this part consists of seven modules corresponding
to the areas listed below (in addition, an introductory module has been added to illustrate
key concepts):

Introductory Module. MISSION AND CONCEPTS

Module I. CRIMINAL LAW—​The Relationship Between International Criminal Tribunals
and their Relationship with the ICJ or Another International Court or Arbitral Tribunal.
Module II. EUROPEAN LAW—​The Relationship Between the European Courts and
their Relationship with the ICJ or Another International Court or Arbitral Tribunal.
Module III. HUMAN RIGHTS LAW—​The Relationship Between Courts of Human
Rights and their Relationship with the ICJ or Another International Court or
Arbitral Tribunal.
Module IV. ECONOMIC AND FINANCIAL LAW—​The Relationship Between
International Judicial Bodies in Economic Matters and their Relationship with the
ICJ or Another International Court or Arbitral Tribunal.
Module V. INVESTMENT LAW—​The Relationship Between the ICSID Tribunals
and the ICJ or Another International Court or Arbitral Tribunal.
Module VI. ENVIRONMENTAL LAW, LAW OF THE SEA, GLOBAL COMMONS
LAW—​The Relationship Between the ITLOS and the ICJ or Another International
Court or Arbitral Tribunal.
Module VII. INTERNATIONAL AND DOMESTIC LAW—​ The Relationship
Between International Courts and Domestic Courts.

The aim is to identify the emergence of common rules (substantial and procedural) in the var-
ious contexts. In each area eminent international law scholars will carry out an analysis of the
points of convergence and divergence not just between the decisions handed down by courts
operating in the same area but also between the decisions of tribunals and international courts
operating in other areas, dealing with different matters, examining the coherence (or lack
thereof) of their jurisprudence when they apply the same international norms, also of a cus-
tomary law nature. In comparing the decisions of the various tribunals, a constant element will
be the reference to the International Court of Justice and the way the decisions of other interna-
tional tribunals relate to its jurisdiction. However, not all the modules will be offered annually
but only whenever there are developments in each of them that will be interesting to note.
The Yearbook is the first academic journal to present an annual overview of the pro-
cess of cross-​fertilization between courts, based on the drafting and systematic classifica-
tion of legal maxims (i.e., points of law decided by various international courts) in the part
entitled “Global Justice—​Decisions of International Courts and Tribunals.” A comprehen-
sive and complete survey by eminent international law scholars exploring, evaluating and
documenting this process has the potential to enhance our contribution and thus further
guide our understanding of how to reduce conflicts and create an effective exchange of legal
reasoning between different courts. The aim is to promote a favourable environment for the
courts to advance the process of judicial cooperation with a view to the possible harmoni-
zation of legal principles governing the global community.

GLOBAL JUSTICE—​D ECISIONS OF INTERNATIONAL

COURTS AND TRIBUNALS
The decisions of international courts and tribunals receive ample coverage in the Yearbook,
reflecting their recognized importance for the development of international law.
xix

Outline of the Parts xix

International courts and tribunals covered include: International Court of Justice,

International Tribunal for the Law of the Sea, WTO Dispute Settlement System, International
Criminal Court, International Criminal Tribunal for the Former Yugoslavia, General Court
and Court of Justice of the European Union, European Court of Human Rights, Inter-​
American Court of Human Rights, International Centre for Settlement of Investment
Disputes, Permanent Court of Arbitration. Moreover, if there were no decisions issued by
these tribunals for the year under consideration, we would omit the relating section.
Each major international court or tribunal has its own section, which includes an
Introductory Note on the activity of that judicial body over the course of the year under
consideration. The activities of the court and tribunals are presented in the form of “legal
maxims,” i.e., brief and easily understood extracts of statements on international law
announced in a judicial decision, focusing on points of law decided by various international
courts, systematically arranged.
Normally, the maxims consist of integral citations from the text of the judgment.
However, divergences from the original text (i.e., omissions or additions) are marked by
the use of square brackets (round brackets with dots are used to indicate that the quotation
which follows is situated in the original text before the previous quotation). Maxims usu-
ally reproduce the text of several extracts drawn from different paragraphs of the decision
to which reference is made. Further, to give the reader an immediate idea of the constituent
parts of the maxim, the paragraph number corresponding to each extract is given below
each legal maxim in the order in which they have been used.
The maxims are collected according to the “Systematic Classification Scheme,” which
can be found at the beginning of this part. This scheme has two parts, dealing respectively
with substantive and procedural international law. Each of these parts is further divided
into headings and sub-​headings.
The maxims are systematically presented and also logically arranged in such a manner
as to permit the reading of the overall context of each decision, serving as a forerunner to
the full reading of the text of each judgment.
The chosen working-​method has been adapted from the one successfully employed
in the “Repertory of Decisions of the International Court of Justice/​Répertoire de la
Jurisprudence de la Cour Internationale de Justice” (1947–​1992), by Giuliana Ziccardi
Capaldo, 1995.
The following information is also given for each decision covered: a) the full title of the
case and the parties to it, where these exist; b) the type of decision, the date, and the orig-
inal language; and c) reference to the collection of Reports in which the original text of the
decision is to be found and/​or specialised websites for Internet access.

RECENT LINES OF INTERNATIONALIST THOUGHT

This part, included in the Yearbook since 2006, focuses on the thought of leading interna-
tional law scholars “innovative” in their responses to challenges that have faced contemporary
world society. The purpose is to give an overview and a critical appraisal of the current inter-
national law literature providing readers with an opportunity to view arguments from different
perspectives, to examine different methodologies and to explore ideas reflecting cultural diver-
sity. This would certainly allow an understanding of the relevance of internationalist thought
on the changes in international law and contemporary politics in the context of globalization.

GENERAL INFORMATION
The journal is included in Scopus, the largest abstract and citation database of peer-​
reviewed literature.
Another random document with
no related content on Scribd:
 Fig. 336. Glossopteris Browniana, Brongn. Sporangia. (× 30). After Arber.
The rhizome of Glossopteris Browniana has been described in
detail by Zeiller, who first demonstrated that the fossils originally
assigned by Royle[1318] to the genus Vertebraria represent the stem
of this and, as we now know, of some other species of Glossopteris.
Vertebraria occurs in abundance in Permo-Carboniferous strata in
association with Glossopteris; the differences between Australian,
Indian, and South forms, though expressed by specific names, are
insignificant. The stems are usually preserved in the form of
flattened, single or branched, axes sometimes bearing slender
branched roots and characterised by one or two, or less frequently
three, longitudinal grooves or ridges (fig. 337) from which lateral
grooves or ridges are given off at right angles, dividing the surface
into more or less rectangular areas 1 cm. or more in length. The
surface of these areas is often slightly convex and in some
specimens the outlines of cells may be detected. Mr Oldham has
described some interesting examples of Vertebraria from India in
which the longitudinal and transverse grooves are occupied by a
dark brown ferruginous substance or by the carbonised remains of
plant-tissues (fig. 338, C, D). In transverse section, a Vertebraria
cast appears to be divided into a number of wedge-shaped
segments radiating from a common centre. Prof. Zeiller[1319] has
figured specimens of Vertebraria with portions of Glossopteris fronds
still attached.

Fig. 337. Vertebraria indica, Royle. Nat. size. (After Feistmantel.)

The rhizome of Glossopteris, as represented by the Vertebraria
casts, is aptly compared by Zeiller[1320] with that of the recent
Polypodiaceous fern Onoclea struthiopteris. Sections of the recent
stem (fig. 338, E, F) show that the form is irregularly stellate owing to
the presence of prominent wings which anastomose laterally at
intervals as shown by the examination of a series of sections. The
leaf-traces are derived from the steles of adjacent wings. Fig. 338 (B
and A) represents somewhat diagrammatically a longitudinal and
transverse view of a Vertebraria; the radiating arms represented in
the transverse section (fig. A) are the stem ribs or wings and the
segments between them are intrusions of sedimentary material. The
rectangular areas characteristic of the surface of a Vertebraria are
the intruded segments of rock: these are separated at intervals by
transverse grooves, which mark the course of vascular strands given
off at each anastomosis of the longitudinal wings to supply the
leaves.

Fig. 338.
A, B. Vertebraria indica. (After Zeiller.)
C, D. V. indica. (Nat. size. After Oldham.)
E, F. Onoclea struthiopteris. (× 2. After Zeiller.)
 Mr Oldham, who discovered the connexion between Glossopteris
and Vertebraria independently of Dr Zeiller, does not agree with the
interpretation of the structural features of the rhizome which Zeiller
bases on a comparison between Vertebraria and Onoclea
struthiopteris. Oldham[1321] describes Vertebraria as consisting of a
central axis “joined to an outer rind by a series of radial septa,” the
spaces between the septa being divided into chambers by
transverse partitions. His view is that the rhizome of Glossopteris
was a cylindrical organ and not an irregularly winged axis like the
stem of Onoclea. Zeiller[1322] has replied in detail to Oldham’s
interpretation and adheres to his original view, that the rhizome
consisted of a solid axis with radial wings or flanges which at
intervals anastomosed transversely in pairs at the nodes. It may,
however, be possible that the spaces between the longitudinal and
transverse grooves on a Vertebraria axis, which have been filled with
the surrounding rock, were originally occupied in part at least by
secondary wood, and the transverse strips of carbonaceous
material[1323] lying in the grooves may represent medullary-ray tissue
and accompanying leaf-traces. The longitudinal striations seen in
some specimens of Vertebraria on the areas between the grooves
may be the impressions of woody tissue. It is impossible without the
aid of more perfectly preserved material to arrive at a satisfactory
conception of the structural features of a complete Glossopteris
rhizome.
 Fig. 339. Glossopteris fronds attached to rhizome. (From a specimen lent
by Dr Mohlengraaff. Considerably reduced.)
In the specimen of Glossopteris Browniana shown in fig. 339
several leaves are attached to an axis which shows none of the
surface-features of Vertebraria. I am indebted to the kindness of Dr
Mohlengraaff of Delft for the loan of this specimen which was
obtained from Permo-Carboniferous rocks in the Transvaal. An axis
figured by Etheridge[1324] from an Australian locality bears a tuft of
Glossopteris leaves, possibly G. Browniana; in place of the
rectangular areas characteristic of Vertebraria it shows transversely
elongated leaf-scars or, on the internal cast, imbricate rod-like
projections which Etheridge suggests represent vascular bundles.

Glossopteris indica, Schimper. Figs. 340, A, 341.

It is a question of secondary importance whether or not the fronds
which Brongniart spoke of as a variety of Glossopteris Browniana
should be recognised as specifically distinct. The careful
examination by Zeiller of the venation characters has, however,
afforded justification for separating G. Browniana and G. indica. We
must admit that the slight and not very constant differences in the
size and form of the meshes produced by the anastomosing of the
lateral veins are characters which cannot be recognised as having
more than a secondary value, though, as a matter of convenience,
we employ them as aids to determination. The arbitrary separation of
sterile leaves, which differ by small degrees from one another in form
and in the details of venation, by the application of specific names is
a thankless task necessitated by custom and convenience; it is,
however, idle to ignore the artificial basis of such separation. Mr
Arber has recently published, in his valuable Glossopteris Flora, an
analytical key which serves to facilitate the description and
determination of different types of frond[1325].
 Fig. 340.
A. Glossopteris indica, Schimper. (½ nat. size.)
B. Glossopteris angustifolia, Brongniart. (Nat. size.) From Arber, after
Feistmantel.
The large leaves of Glossopteris indica, reaching a length in
extreme cases of 40 cm. and a breadth of 10 cm., are characterised
by a rather greater regularity in the arrangement of the meshes and
by the greater parallelism of the upper and lower sides of each mesh
(fig. 341) and by less difference in size between the venation
meshes than in G. Browniana, the leaves of which are usually
smaller. The relatively thick epidermis consists of rectangular cells
with stomata in depressions[1326]. The scale-leaves[1327], rather larger
than those of G. Browniana, are more or less rhomboidal with
rounded angles and reach a length of 1·5–6 cm. and a breadth of
1·5–2·5 cm. The rhizome is practically identical with that of G.
Browniana[1328].

Fig. 341. Glossopteris indica, Schimp. (× 1½.) From Arber, after Zeiller.
This species occurs in great abundance in the Permo-
Carboniferous rocks of India, Australia, and in various parts of South
Africa, and elsewhere. It has been recognised also by Amalitzky[1329]
in Upper Permian beds in Russia and by Zeiller in the Rhaetic series
of Tonkin[1330].
 Fig. 342. Glossopteris angustifolia var. taeniopteroides. (× 3½.)

Glossopteris angustifolia, Brongniart. Figs. 340, B; 342.

It is convenient to retain this designation for linear fronds with an
acute or obtuse apex and a venation-reticulum composed of long
and narrow meshes (fig. 340, B). It is by no means unlikely, as Arber
suggests, that the same plant may have produced leaves of the G.
indica type and narrower fronds which conform to G. angustifolia. In
his description of some Indian specimens of G. indica, Zeiller draws
attention to the variation exhibited in regard to the extent of
anastomosing between the secondary veins: some examples with
very few cross-connexions agree more closely with Taeniopteris than
with Glossopteris as usually defined[1331]. The venation shown in fig.
342 illustrates an extreme case of what is almost certainly a
Glossopteris leaf of the G. angustifolia type. This specimen, which
was discovered by Mr Leslie in the Permo-Carboniferous sandstone
of Vereeniging (Transvaal), has been referred to a variety of
Brongniart’s species as G. angustifolia var. taeniopteroides[1332] on
account of the almost complete absence of any cross-connexions.
The reference to Glossopteris, which my friend Dr Zeiller suggested,
is amply justified by the form of the leaf as a whole, by the angle at
which the lateral veins leave the midrib, a feature in contrast to the
wider angle at which the lateral veins are usually given off in
Taeniopteris (figs. 329, 332), and by the similarity to the Indian
specimens already mentioned. Several authors have described
leaves or leaflets under the generic name Megalopteris[1333] from
Carboniferous and Permian rocks which bear a close resemblance
to the South African variety, but in some cases at least Megalopteris
is known to be a pinnate and not a simple leaf. The leaf figured by
Jack and Etheridge as Taeniopteris sp.[1334] from Queensland may
also be an example of Glossopteris. Comparison may be made also
with the Palaeozoic leaves described in the first instance by
Lesquereux and more recently by Renault and Zeiller as species of
Lesleya[1335] (fig. 347).

Fig. 343. Blechnoxylon talbragarense, Eth.: s, scale-leaves; x, secondary

xylem. (After Etheridge. A × 2; B × 3; C much enlarged.)
Blechnoxylon talbragarense, Etheridge. Fig. 343.
Under this name Etheridge[1336] described some specimens from
the Permo-Carboniferous Coal-Measures of New South Wales,
which he regards as a fern, comparable, in the possession of a
cylinder of secondary xylem, with the recent genus Botrychium and
with Lyginodendron and other members of the Cycadofilices. The
slender axis (1–3 mm. in diameter) appears to consist of a zone of
radially disposed tissue (fig. 343, C, x), which is probably of the
nature of secondary xylem, enclosing a pith and surrounded
externally by imperfectly preserved remnants of cortex. Unfortunately
no anatomical details could be made out, but the general
appearance, if not due to inorganic structure, certainly supports
Etheridge’s determination. The stem bore at intervals clusters of
linear-lanceolate leaves (reaching 12 mm. in length) in close spirals
(fig. 343, A and B); the leaves are characterised by a strong midrib
and forked secondary veins. Small “pyriform” bodies of the nature of
scale-leaves occur in association with the fronds (fig. 343, B, s).
In his description of this interesting plant, Etheridge quotes an
opinion which I expressed in regard to the comparison of the stem
with those of Botrychium, Lyginodendron, and other genera. No
satisfactory evidence has been found as to the nature of the
fructification. Although the leaves of Blechnoxylon are much smaller
than those of Glossopteris, I am now disposed to regard the genus
as closely allied or even generically referable to Glossopteris. The
crowded disposition of the leaves is like that in Glossopteris, shown
in fig. 339 and in the figures published by Etheridge and by Oldham;
the association of scale-leaves and foliage-leaves is another feature
in common. The absence of a reticulum of anastomosing veins can
no longer be considered a fatal objection to the suggestion that the
Australian type may be a species of Glossopteris. If the view that
Blechnoxylon is not a distinct genus is correct, the occurrence of
secondary xylem is favourable to the opinion already expressed that
Glossopteris is more likely to be a Pteridosperm than a true fern. The
data at present available render it advisable to retain Mr Etheridge’s
name: the comparison with Glossopteris lacks confirmation.
BLECHNOXYLON
 Fig. 344. Glossopteris retifera. (Nat. size. From Arber, after Feistmantel.)

Glossopteris retifera, Feist. Fig. 344.

In some Glossopteris leaves the anastomosing secondary veins
form a coarser reticulum, as in the example represented in fig. 344.
The name G. retifera was given by Feistmantel[1337] to Indian fronds
of this type; similar forms have been described as G. conspicua and
G. Tatei. The type illustrated by G. retifera is recorded also from
Permo-Carboniferous rocks in Zululand[1338], Natal, the Transvaal,
Cape Colony, and the Argentine.
 Gangamopteris.
In 1847 McCoy[1339] described a leaf-fragment from Permo-
Carboniferous rocks in New South Wales as Cyclopteris angustifolia.
The type-specimen of this species, which is now in the Sedgwick
Museum, Cambridge, has been re-described by Mr Arber[1340].
Subsequently[1341] McCoy instituted the generic name
Gangamopteris for leaves, like that previously referred by him to
Cyclopteris, from the Bacchus Marsh Sandstone, of New South
Wales, but he did not publish a diagnosis of the genus until several
years later[1342]. Feistmantel[1343], who has described many species of
Gangamopteris from the Lower Gondwana strata of India, slightly
modified the original diagnosis. The genus is represented by sterile
fronds only. We know nothing of the stem, and such evidence as is
available in regard to the form of the fertile leaves is of a
circumstantial kind. It is, however, highly probable that
Gangamopteris is not a true fern but a Pteridosperm.
Leaves simple, sessile, varying in shape; obovate or spathulate, broadly
lanceolate or rarely linear; the apex is usually blunt (fig. 345) but occasionally
gradually tapered. In general appearance a Gangamopteris leaf is similar to
that of Glossopteris indica, the chief distinction being the absence of a midrib.
Gangamopteris leaves are on the whole larger than those of Glossopteris;
many of them reach a length of 20 cm. and some of the large Indian fronds are
nearly 40 cm. long. The venation of Gangamopteris shows a greater uniformity
in the size and shape of the meshes than that of Glossopteris. The middle of
the lamina, especially in the lower part, is occupied by a few vertical veins from
which branches curve upwards and outwards towards the edge of the lamina.
The secondary veins are connected by frequent anastomoses and agree very
closely with those of Glossopteris. The lamina becomes narrower towards the
base, which is either cuneate or in some cases slightly auriculate (fig. 345).

As I have elsewhere pointed out[1344], the presence or absence of a

midrib is not in itself a character of real taxonomic importance. In the
recent fern Scolopendrium vulgare the frond has a prominent midrib,
while in S. nigripes there is no median rib. Mr Arber has expressed
the opinion that “it is extremely doubtful whether the genus
Gangamopteris should not be merged in Glossopteris[1345].” The
retention of the two names is, however, convenient, and it would
tend to confusion were we to carry to its logical conclusion the view
that the recognised distinction between the two genera may not be a
mark of generic difference.
Gangamopteris is confined to Palaeozoic strata, a fact which leads
White[1346] to speak of the Gangamopteris rather than of the
Glossopteris Flora. It occurs in South America, South Africa,
Australia, and India, extending as far north as Kashmir; it has been
discovered by Amalitzky in Permian rocks of Russia[1347]. The
Russian rocks in which Glossopteris and Gangamopteris were found
are no doubt of Permian age. In Australia, South Africa, Brazil and
Argentina, and in the Indian Coal-fields, Gangamopteris is a
characteristic genus of Lower Gondwana rocks. These strata are
usually spoken of as Permo-Carboniferous in order to avoid the
danger of attempting on insufficient data a precise correlation with
European formations.
Feistmantel speaks of Gangamopteris as most abundant in the
Talchir-Karharbári beds, though it is represented also in the overlying
Damuda series. In Australia the genus occurs in rocks which
correspond in position and in their plant fossils with the Talchir-
Karharbári beds of India; similarly, in South Africa and South
America the Gangamopteris beds are homotaxial with those of India
and Australia. The leaf described by Carruthers[1348] from Brazil as
Noeggerathia obovata (the type-specimen is in the British Museum)
is no doubt specifically identical with Gangamopteris cyclopteroides
Feist.[1349] In a paper by Mr Hayden on Gangamopteris beds in the
Vihi Valley, Kashmir, evidence is adduced in support of the
conclusion that the rocks are “not younger than Upper Carboniferous
and may belong to the base of that subdivision or even to the Middle
Carboniferous[1350].” It would seem that Gangamopteris was a very
widely spread genus during the latter part of the Carboniferous
period in the vast Southern Continent to which the name Gondwana
Land is often applied, and that it flourished in the Southern Flora
during at least part of the Permian period: with other members of the
Glossopteris Flora it migrated to the North where it has been
preserved in Permian rocks of Northern Russia. The Glossopteris
Flora must have had its birth in the Southern hemisphere. The
conclusion seems inevitable that the leaves of Glossopteris and
Gangamopteris in the shales and sandstones of India, South Africa,
South America, and Australia are relics of the vegetation of a
continent of which these regions are the disjuncta membra. Darwin
wrote to his friend Hooker in 1881, “I have sometimes speculated
whether there did not exist somewhere during long ages an
extremely isolated continent, perhaps near the South Pole[1351].” It is
probable that Gangamopteris is one of the genera which flourished
on this continent.

Gangamopteris cyclopteroides, Feistmantel[1352]. Fig. 345.

1876. Feistmantel, Records Geol. Surv. India, Vol. ix. Pt iii. p.
73.

The specimen represented in fig. 345 illustrates the characters of

this commonest representative of the genus.
 Fig. 345. Gangamopteris cyclopteroides, Feist. (Nat. size. From Arber,
after Feistmantel.)

Gangamopteris kashmirensis, Seward.

1905. Seward, Mem. Geol. Surv. India, Vol. ii. Mem. ii.

This type agrees closely with G. cyclopteroides in size and in the

form of the leaf, but it is distinguished by the flatter form of the arch
formed by the lateral veins, by their greater inclination to the margin
of the lamina, and by the more acutely pointed apex of the lamina.
This species, though not very sharply distinguished from G.
cyclopteroides, is important as coming from beds which have been
assigned on other than palaeobotanical evidence to an Upper or
possibly a Middle Carboniferous horizon[1353].
We have no definite information in regard to the nature of the
reproductive organs of Gangamopteris, but such evidence as there
is supports the view expressed by Dr White[1354] and shared by some
other authors that Gangamopteris and Glossopteris should be
assigned to the Pteridosperms. Despite the abundance of
Gangamopteris leaves, no fertile specimen has been discovered.
This negative evidence may prove to be as correct as that which led
Stur[1355] to exclude Neuropteris, Alethopteris and Odontopteris from
the ferns. The only evidence of a positive kind is that furnished by Dr
David White in his recent Report on the Palaeozoic Flora of South
Brazil. This author describes some small Aphlebia-like leaves under
two new generic names Arberia[1356] and Derbyella[1357]. The
differences between the two sets of specimens, so far as can be
determined from the reproductions of imperfect impressions, are
slight, and it is by no means clear that a distinction of generic rank
exists. These scale-leaves are on the average about 2 cm. in length;
the lamina is oval or rounded and has more or less prominent lobes.
In Derbyella there are indications of anastomosing veins. The
specimens referred to Arberia minasica are, as White points out,
very similar to the fossil described by Feistmantel from Lower
Gondwana rocks of India as probably a portion of an inflorescence of
Noeggerathiopsis[1358]. Feistmantel’s specimen is represented in fig.
346: the curled lobes may have originally borne seeds. In the
Brazilian examples the abruptly truncated lobes “bear evidence of
separation from reproductive bodies.” An important point is the
association of these scale-leaves with Gangamopteris fronds and
with gymnospermous seeds of the Samaropsis type. On the leaves
assigned to Derbyella aurita circular depressions occur at the base
of the lobes which are described as probably due to sporangia.
Dr White’s discovery gives us increased confidence in expressing
the view that Gangamopteris bore its reproductive organs on
specialised leaves very different from the sterile fronds; it also
strengthens the suspicion that the genus is a member of the class of
seed-bearing fern-like plants.

Fig. 346. Arberia sp. (= Noeggerathiopsis of Feistmantel). (Nat. size. After

Feistmantel.)

Lesleya.
This generic designation was instituted by Lesquereux[1359] for
simple oval-linear leaves from the Coal-Measures of Pennsylvania.
The leaves so named are probably generically identical with the
specimen doubtfully assigned by Brongniart[1360] to the Coal-
Measures, and made by him the type of the genus Cannophyllites on
the ground of a resemblance to the leaves of the recent flowering
plant Canna. Fig. 347 illustrates the form of a Lesleya leaf from the
Coal-basin of Gard, named by Grand’Eury L. simplicinervis[1361], a
type in which the veins are frequently unbranched and not
repeatedly forked as in most examples of the genus (fig. 329, C).
The features of the genus are, the oval-linear or lanceolate shape of
the presumably simple frond, its entire or, in one species at least (L.
Delafondi, Zeill.), finely dentate margin, the stout rachis giving off at
a very acute angle numerous dichotomously branched secondary
veins. In L. Delafondi (fig. 329, C), described by Zeiller[1362] from the
Lower Permian of Autun, the frond may reach a length of more than
20 cm. and a breadth of 8 cm. Similar species are represented by L.
ensis[1363] from the coal-field of Commentry, and L. grandis[1364] from
Upper Carboniferous rocks of North America. The genus is
characteristic of Upper Carboniferous and Lower Permian strata: the
form of the leaf and the direction of the secondary veins suggest
comparison with Glossopteris, but in Lesleya there are no cross-
connexions between the veins. Nothing is known as to the
fructification, a fact which naturally evokes the opinion that the genus
is a Pteridosperm[1365] and not a true fern. Some years before the
discovery of Pteridosperms, Grand’Eury[1366] suggested that Lesleya
might be a Gymnosperm; his opinion being based on the woody
nature of the rachis and on the simple venation of Lesleya
simplicinervis.

Fig. 347. Leslya simplicinervis, Grand’Eury. (Reduced: after Grand’Eury.)

 Neuropteridium.
In their monograph of fossil plants from the Bunter Series of the
Vosges, Schimper and Mougeot[1367] described some pinnate leaves
of ferns as species of the genus Neuropteris. In 1869 Schimper[1368]
placed these in a new sub-genus Neuropteridium, in order to draw
attention to the fact that their fronds appear to be simply pinnate and
not bipinnate or tripinnate as in Neuropteris. The type-species of
Neuropteridium is N. grandifolia Sch. and Moug. from the Bunter
Sandstones of the Vosges. The genus includes Triassic European
species and the widely distributed Permo-Carboniferous species
from Brazil[1369] originally described by Carruthers as Odontopteris
Plantiana. It is probable that some Carboniferous plants, particularly
species from the lower members of the formation, referred to the
genus Cardiopteris, are not genetically distinct from the Indian and
southern hemisphere type Neuropteridium validum (= Odontopteris
Plantiana).
Fronds pinnate, linear; a broad rachis bears pinnules which may be either
semicircular or broadly linear with an entire or lobed margin. The longer
pinnules may exceed 6 cm. in length. The pinnules agree with those of
Neuropteris in being attached by the median portion of the lamina and not by
the whole base, which is more or less auriculate. In some cases the repeatedly
forked veins diverge from the centre of the pinnule base; in others there is a
midrib which persists for a short distance only, and in some species the more
persistent median vein gives the segments a closer resemblance to those of
Neuropteris. Fructification unknown, with the exception of obscure indications
of sporangia (?) on the fertile leaves of a Triassic species.