Saturday, June 2, 2007
Taxil: Les critères de l'applicabilité directe des traités internationaux aux États-Unis et en France
Friday, June 1, 2007
The Supreme Court's recent reliance on foreign precedent to interpret the Constitution sparked a firestorm of criticism and spawned a rich debate regarding the extent to which U.S. courts should defer to foreign law when developing U.S. constitutional norms. This article looks at a subset of the issue of deference to foreign law and international influences in judicial decision making: the extent to which our courts should apply American notions of due process in determining whether to recognize and enforce judgements obtained abroad.
Courts reviewing foreign judgements to determine whether they are worthy of recognition have created an international due process analysis. The analysis requires courts to pass judgement on the overall judicial and political systems of the countries from which the judgements originated and to determine whether the systems as a whole are fundamentally fair. Remarkably, courts ignore the individual proceedings that resulted in the judgement and refuse to determine whether the foreign courts afforded the individual litigants due process, relying instead on political evidence and judges' own personal preceptions of the foreign countries. Courts have gone so far as to label civilized and uncivilized. Under this analysis, courts will enforce judgements from civilized nations that violate U.S. constitutional norms and refuse to enforce judgements from uncivilized countries even if the foreign countries afforded the litigants due process. This article argues that the international due process analysis violates the separation of powers because it requires courts to make foreign policy. This article also re-envisions an international due process analysis that would require courts to assess - according to American notions of due process - the particular foreign proceedings in which judgements sought to be recognized and enforced were rendered.
This essay demonstrates that U.S. courts apply two mutually inconsistent models in cases where individual litigants raise claims or defenses on the basis of treaties. I refer to these as the "nationalist" and "transnationalist" models of treaty enforcement. As applied to the Geneva Conventions, the transnationalist model holds that: the Geneva Conventions have the status of law in the United States; courts should interpret the Conventions in accordance with international law; the Conventions protect individual rights; and it is the judiciary's responsibility to provide remedies for individuals whose treaty rights are violated. In contrast, the nationalist model holds that: the Geneva Conventions lack domestic legal force in the absence of implementing legislation; courts should interpret the Conventions in accordance with executive branch policy preferences; the Conventions do not create individually enforceable rights; and it is not the judiciary's responsibility to provide remedies for violations of the Geneva Conventions.
The essay has three objectives. First, it provides a conceptual overview of the distinction between the nationalist and transnationalist models. Second, it illustrates the application of the two models by reference to recent judicial decisions implicating the Geneva Conventions. The analysis shows that U.S. courts have applied both models in Geneva Convention cases, even though the two models are mutually inconsistent. Third, the essay shows that the transnationalist model has deep historical roots, dating back to the eighteenth century, whereas the emergence of the nationalist model is largely a post- World War II development. This essay does not present original historical analysis: it merely summarizes the historical analysis developed by this author and other scholars in previous publications.
Thursday, May 31, 2007
The theme will concern the inroads made by International law in European Community law. Having extensively discussed legal aspects of EU-US relations at last year's Leiden London meeting, we will now turn our attention, in particular, to the role of UN resolutions and of WTO rules in relation to Community law and their compatibility with EU legislation, involving questions of primacy and limits of competence.
The concept of UN peacekeeping has had to evolve and change to meet the challenges of contemporary sources of conflict; consequently, peacekeeping operations have grown rapidly in number and complexity. This book examines a number of issues associated with contemporary multinational peace operations, and seeks to provide insights into the problems that arise in establishing and deploying such forces to meet the challenges of current conflicts.
The focus of the book is three case studies (Lebanon, Somalia and Kosovo), involving a comparative analysis of the traditional peacekeeping in Lebanon, the more robust peace enforcement mission in Somalia, and the international administration undertaken on behalf of the international community in Kosovo. The book analyses the lessons that may be learned from these operations in terms of mandates, command and control, use of force and the relevance of international humanitarian and human rights law to such operations.
The recent explosion of investment treaty arbitration marks a major transformation of both international and public law, above all because of the manner in which states have delegated core powers of the courts to private arbitrators. This book outlines investment treaty arbitration as a public law system and demonstrates how it goes beyond all other forms of international adjudication in giving arbitrators a comprehensive jurisdiction to determine the legality of sovereign acts, and to award public funds to businesses that sustain loss as a result of government regulation. The analysis also reveals some startling consequences of transplanting rules of commercial arbitration into the regulatory sphere. For instance, the system allows public law to be interpreted by arbitrators in private as a matter of course, with limited scope for judicial review. Further, arbitrators can award compensation to investors in ways that go beyond domestic systems of state liability, and these awards may then be enforced in as many as 165 countries, making them more widely enforceable than any other adjudicative decision in public law. The system's mixture of private arbitration and public law undermines accountability and openness in judicial decision-making. But, most importantly, it poses a unique and fundamental challenge, neglected by other commentators - to the principle of judicial independence. To address this, this book argues that the system be replaced with an international investment court, properly constituted according to public law principles, and made up of tenured judges.
The latest issue of the Virginia Journal of International Law (Vol. 47, no. 2, Winter 2007) is out. Contents include:
- David Weissbrodt & Amy Bergquist, Extraordinary Rendition and the Humanitarian Law of War and Occupation
- Lan Cao, Culture Change
- Patrick X. Delaney, Transnational Corruption: Regulation Across Borders
- Helen Quane, Rights in Conflict? The Rationale and Implications of Using Human Rights in Conflict Prevention Strategies
- Charles H. Brower II, Nunca Más or Déjà Vu?
Wednesday, May 30, 2007
In “International Human Rights in American Courts,” Judge William Fletcher analyzes the implications of the Supreme Court’s recent opinion in Sosa v. Avarez-Machain. The plaintiff in Sosa brought suit for tortious violation of customary international law under 28 U.S.C. § 1350, the Alien Tort Statute (“ATS”). The Court held that the federal courts can enforce norms of customary international law in suits brought under the ATS only if the norms are established with sufficient clarity to satisfy the restrictive criteria set forth in the Court’s opinion.
According to Judge Fletcher, the Court answered two questions in Sosa. First, there is a limited federal common law of international human rights based on customary international law. Second, that federal common law is both jurisdiction-conferring in the sense of “arising under” federal law, and supreme in the sense of the Supremacy Clause. Professors Jack Goldsmith and Curtis Bradley, among others, had raised questions about the legitimacy of the line of human rights cases based on customary international law that began with the Second Circuit’s 1980 decision in Filartiga v. Pena-Irala. The Court’s response was that, within the scope of the federal common law permitted by Sosa, Filartiga remains good law.
However, the Supreme Court in Sosa did not answer questions about the possible preemptive scope of the federal common law on international human rights. Judge Fletcher explores three examples - (1) a wholly international case in which an alien sues another alien for a violation of international human rights abroad; (2) a partially international case in which an alien sues an American corporation for such a violation abroad; and (3) a wholly domestic case in which a defendant in a American court contends that a State’s death penalty violates international human rights. Judge Fletcher points out that these preemption questions are going to arise in both state and federal courts. He further points out that the federal courts may, in some cases not covered by federal common law, be required by Erie Railroad v. Tompkins to follow state courts’ decisions on questions of international human rights.
When and why do American judges enforce treaties? Today’s dominant theory of treaty enforcement is the doctrine of “self-execution,” which suggests that judicial enforcement of treaties is deduced from the nature of the treaties signed. The theory holds that some treaties are written so as to be directly enforceable, just like a statute, with full domestic effects, while other treaties are written so as to create duties only under international law. Unfortunately, as most scholars recognize, the doctrine is perplexing and of limited predictive value.
This Article, based on a new study of the history and record of treaty enforcement, provides a different theory as to when treaties are actually enforced in American courts. It finds that the question of whether a treaty is “self-executing” is acting as a proxy for questions of institutional deference. A good guide to treaty enforcement across the history of the United States is whether it is Congress, the Executive, or a State accused of breach.
The basic treaty enforcement question is, and has been, whether the alleged act of treaty breach justifies a judicial remedy. Judicial deference to Congressional action with respect to a treaty is to be expected. Conversely, the judiciary will continue to use treaty law to prevent States from putting the United States in violation of its international obligations. As to the Executive, the judiciary should begin to explain why, in terms of deference, it is or is not choosing to enforce a treaty against Executive breach.
- Cristián Conejero Roos & Renato S. Grion, Arbitration in Brazil: Law and Practice from an ICC Perspective
- Hamid G. Gharavi and Lara Karam, Arbitration in Yemen
- Eric A. Schwartz, ‘New Claims’ in ICC Arbitration: Navigating Article 19 of the ICC Rules
- Vaughan Black, Canada and the US Contemplate Changes to Foreign-Judgment Enforcement
- Ole Lando & Peter Arnt Nielsen, The Rome I Proposal
- Andrew Dickinson, Third-Country Mandatory Rules in the Law Applicable to Contractural Obligations: So Long, Farewell, Auf Wiedersehen, Adieu?
- Lorna E. Gillies, Choice-of-Law Rules for Electronic Consumer Contracts: Replacement of The Rome Convention by the Rome I Regulation
- Zheng Tang, Parties’ Choice of Law in E-Consumer Contracts
- Martin P. George, Choice of Law in Maritime Torts
- Ben Juratowitch, The European Convention on Human Rights and English Private International Law
- Kisch Beevers & Javier Peréz Milla, Child Abduction: Convention "Rights of Custody" - Who Decides? An Anglo-Spanish Perspective
Tuesday, May 29, 2007
Preliminary Findings on Visit to United States by Special Rapporteur on Human Rights and Counter-Terrorism
In a world community which has adopted global measures to counter terrorism, the United States is a leader. This position carries with it a special responsibility also to take leadership in the protection of human rights while countering terrorism. The example of the United States will have its followers, in good and in bad. The Special Rapporteur has a deep respect for the long traditions in the United States of respect for individual rights, the rule of law, and a strong level of judicial protection. Despite the existence of a tradition in the United States of respect for the rule of law, and the presence of self-correcting mechanisms under the United States Constitution, it is most regretful that a number of important mechanisms for the protection of rights have been removed or obfuscated under law and practice since the events of 11 September, including under the USA PATRIOT Act of 2001, the Detainee Treatment Act of 2005, the Military Commissions Act of 2006, and under Executive Orders and classified programs.
The Special Rapporteur thus sees his visit as one step in the process of restoring the role of the United States as a positive example for respecting human rights, including in the context of the fight against terrorism. He dismisses the perception that the United States has become an enemy of human rights. It is a country which still has a great deal to be proud of.
Ambassador Zalmay Khalilzad, U.S. Permanent Representative to the United Nations, responded:
[W]e are doing this [detaining persons at Guantanamo and using military commissions] under US laws and procedures and legitimate decision making authorities that exist in the United States. We are a rule of law country and our decisions are based on rule of law.
- Mark P. Lagon, of Virginia, to be Director of the Office to Monitor and Combat Trafficking, with the rank of Ambassador at Large
- Phillip Carter, III, of Virginia, to be Ambassador to the Republic of Guinea
- Hans G. Klemm, of Michigan, to be Ambassador to the Democratic Republic of Timor Leste
- Janet E. Garvey, of Massachusetts, to be Ambassador to the Republic of Cameroon
- R. Niels Marquardt, of California, to be Ambassador to the Republic of Madagascar, and to serve concurrently and without additional compensation as Ambassador to the Union of Comoros.
- Miriam K. Hughes, of Florida, to be Ambassador to the Federated States of Micronesia
- James R. Keith, of Virginia, to be Ambassador to Malaysia
- Cameron R. Hume, of New York, to be Ambassador to the Republic of Indonesia
- Ravic Rolf Huso, of Hawaii, to be Ambassador to the Lao People's Democratic Republic
(Well, this is what you get from a former State Department lawyer.)
The conference will bring together leading international arbitrators, mediators, practitioners and scholars to discuss contemporary issues in international arbitration and mediation. Arbitration topics will include how international arbitrations are conducted and decisions made, jurisdiction issues, ethics issues, and investor/state arbitration, including fair and equitable treatment, performance requirements, property takings, damages, and choice of law. Mediation topics will consider where mediation practice is going in the next few years and why, mediation in the U.S., Europe and Asia, ethical issues in mediation, and mediation techniques.
The TRIPS Agreement is the most comprehensive and influential international treaty on intellectual property rights. It brings intellectual property rules into the framework of the World Trade Organization, obliging all WTO Member States to meet minimum standards of intellectual property protection and enforcement. This has required massive changes in some national laws, particularly in developing countries. This volume provides a detailed legal analysis of the provisions of the TRIPS Agreement, as well as elements to consider their economic implications in different legal and socio-economic contexts.
This book examines the obligations imposed on WTO members in different fields of intellectual property, and thoroughly explores the flexibilities that they enjoy in implementing the Agreement. It discusses the interpretation of the Agreement's provisions and the WTO jurisprudence already developed on certain aspects of the Agreement. It also includes a brief discussion on emerging issues such as protection of traditional knowledge, and on options for further developments e.g. copyright in a digital environment, and the relationship with competition law. It also takes into account recent developments in bilateral agreements and free trade agreements that contain TRIPS-plus standards of protection.
The Preamble and general provisions of the TRIPS Agreement are addressed, as well as the substantive rules on copyright and related rights, trademarks, geographical indications, industrial designs, patents, integrated circuits, trade secrets and test data. The controversies about the implementation and interpretation of these provisions are highlighted, including the content an implications of the Doha Declaration on the TRIPS Agreement and Public Health of November 2001, and of the WTO Decision of August 30, 2003 relating to access to medicines. The book also analyzes the crucial enforcement provisions and other aspects of the Agreement.
- Lesley Wexler, Take the Long Way Home: Sub-Federal Integration of Unratified and Non-Self-Executing Treaty Law
- Lisa J. Laplante & Kimberly Theidon, Transitional Justice in Times of Conflict: Colombia's Ley de Justicia y Paz
- Tai-Heng Cheng, Power, Norms, and International Intellectual Property Law
- D. Dean Batchelder, An Analysis of Potential Conflicts Between the Stockholm Convention and Its Parties' WTO Obligations
- Jane E. Stromseth, Pursuing Accountability for Atrocities after Conflict: What Impact on Building the Rule of Law?
- Nienke Grossman, Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations
- J. Alex Little, Balancing Accountability and Victim Autonomy at the International Criminal Court
Monday, May 28, 2007
Sunday, May 27, 2007
With the rise of supranational legislative bodies, the use of supranational adjudicatory bodies has also increased. These adjudicatory bodies have even been allowed to review the domestic law decisions of federal administrative agencies, and their decisions are insulated from any review by Article III courts. These developments have been met by intense opposition. This Article addresses the question whether, as claimed by several writers, the emerging supranational adjudicatory order impermissibly contravenes the “essential attributes of the judicial power established by Article III.” Examining two case studies, the North American Free Trade Agreement (NAFTA) and the Supreme Court’s recent decisions regarding Article 36 of the Vienna Convention, Professor Monaghan concludes that (generally at least) supranational judicial review does not run afoul of Article III. He draws upon the historical practice of allowing binational panels (BNPs) to adjudicate claims by Americans against foreign sovereigns that stretches back to the earliest days of the Founding, beginning with the Jay Treaty. Indeed, in the period following the Civil War, BNPs even “reviewed” decisions of the United States Supreme Court. With respect to the constitutionality of supranational tribunals expounding treaty obligations, Professor Monaghan argues that these tribunals are fully competent to determine these obligations, and, at least in the trade area, fit well within the “public rights” doctrine, which has played an important role in the rise of the administrative state. Professor Monaghan concludes that based on historical practice and current doctrine, Article III, standing alone, poses no substantial barrier to supranational judicial review.