Saturday, July 21, 2007

New Issue: Revista Española de Derecho Internacional

The latest issue of the Revista Española de Derecho Internacional (Vol. 58, no. 2, 2006) is out. Contents include:

  • S. ÁLVAREZ GONZÁLEZ, Reconocimiento e inscripción en el registro civil de las adopciones internacionales
  • F.J. CARRERA HERNÁNDEZ, La inmunidad de ejecución de los Estados en la Convención de Naciones Unidas sobre las inmunidades jurisdiccionales de los Estados y sus bienes
  • L.M. HINOJOSA, Las sanciones del Consejo de Seguridad contra Al Qaeda y los talibanes: ¿son realmente inteligentes?
  • C. GARCÍA SEGURA & J. IBÁÑEZ MUÑOZ, Los límites de la hegemonía estadounidense: deserciones y disidencias en la coallition of the willing

Alter: Delegating to International Courts

Karen J. Alter (Northwestern - Political Science) has posted Delegating to International Courts: Self-Binding vs. Other-Binding Delegation (Law & Contemporary Problems, forthcoming). Here's the abstract:
Most scholars think of courts as a single category of adjudicative bodies or triadic dispute adjudication. But courts play a variety of roles in the domestic political system. Increasingly, the roles and tasks delegated to International Courts (ICs) mimic in form and content the roles and tasks delegated to courts in liberal democracies. Thus where initially ICs were created to be dispute adjudication bodies, now they are also delegated the roles of administrative review, enforcement, and even constitutional review. This paper overviews the variety of judicial roles delegated to courts, explaining how each role primarily binds other actors, binds states, or both. Analyzing twenty founding treaties for international courts, the paper shows that delegation to ICs is extensive, and growing. It highlights how delegating a role to international courts is fundamentally different than delegating the exact same task to domestic courts, assessing the implications for national sovereignty of delegating specific roles to ICs.

Friday, July 20, 2007

New Volume: Yearbook Commercial Arbitration

The latest volume of the International Council for Commercial Arbitration's Yearbook Commercial Arbitration (Vol. 31, 2006) is out.

New Volume: Yearbook of Private International Law

The latest volume of the Yearbook of Private International Law (Vol. 8, 2006) is out. Contents include:
  • Alfred E. von Overbeck, Three Steps With Petar Sarcevic
  • Tito Ballarino, Is a Conflict Rule for Living Wills and Euthanasia Needed?
  • Katharina Boele-Woelki, Ian Curry-Sumner, Miranda Jansen, & Wendy Schrama, The Evaluation of Same-Sex Marriages and Registered Partnerships in the Netherlands
  • Alegría Borrás, Competence of the Community to Conclude the Revised Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters - Opinion C-1/03 of 7 February 2006: Comments and Immediate Consequences
  • Lawrence Collins: The United States Supreme Court and the Principles of Comity: Evidence in Transnational Litigation
  • William Duncan, Nationality and the Protection of Children across Frontiers, and the Example of Intercountry Adoption
  • Jasnica Garasic, What is Right and What is Wrong in the ECJ's Judgment on Eurofood IFSC Ltd
  • Huang Jin, Interaction and Integration between the Legal Systems of Hong Kong, Macao and Mainland China 50 Years after Their Return to China
  • Ulrich Magnus, Set-off and the Rome I Proposal
  • Yuko Nishitani, International Child Abduction in Japan
  • Yasuhiro Okuda, Reform of Japan's Private International Law: Act on the General Rules of the Application of Laws
  • Robert G. Spector, Same-Sex Marriages, Domestic Partnerships and Private International Law: At the Dawn of a New Jurisprudence in the United States

Lugovoi Extradition: U.S. Response

Previously, I had noted that the United States had taken a restrained approach to the dispute between Russia and the United Kingdom concerning the extradition of Andrei Lugovoi, urging simply Russian "cooperation" with the British investigation. I thought this made sense given the competing policies at stake, as well as the inability of the United States, under U.S. law, to extradite a person for a crime, even a serious crime like murder, if Russia was the country making the request.

But the U.S. talking points changed yesterday, following Russia's expected tit-for-tat response to the British measures taken earlier this week. Now the United States says that Russia should extradite Lugovoi. Secretary Rice, who was in Lisbon for a meeting of the Quartet (Portugal holds the rotating EU presidency), explicitly stated, in an interview with Britain's Sky TV, that Russia "should honor the extradition request and Russia should cooperate fully, because it is not in anybody's interest that you can have a crime committed of this kind and nothing be done about it." In subsequent remarks with the Portuguese Foreign Minister after their meeting, she explained further that "this is an issue of rule of law - to our minds not an issue of politics, it's an issue of rule of law." The Secretary's comments were later reiterated at the daily State Department press briefing by Deputy Spokesman Tom Casey. (By the way, the EU continues to call only for "urgent and constructive cooperation.")

The change in the U.S. line is unfortunate, and the Secretary's explanation for the U.S. position - that it's a matter of the rule of law - is condescending and hypocritical. There are a number of "rules of law" competing here: international, British, and Russian. The Secretary has chosen to emphasize one, which has the inevitable effect of deemphasizing the others. What's more, as explained previously, the long-term rule of law effects (thinking of "rule of law" as law enforcement) of the Secretary's position are not positive. The U.S. hypocrisy is particularly glaring, as the United States could not extradite a person to Russia if exactly the same crime were committed there and the fugitive was found here. Is the Secretary suggesting that U.S. law is not in accord with the rule of law? One cannot but conclude (contrary to the Secretary's claim) that short-term political gamesmanship has here gotten in the way of sensible thinking.

UPDATE: Perhaps Poland should expel U.S. diplomats following the denial today of its request that the United States extradite Edward Mazur, who allegedly hired the murderer of Poland's National Police Chief in 1998.

New Issue: Schweizerische Zeitschrift für internationales und europäisches Recht

The latest issue of the Schweizerische Zeitschrift für internationales und europäisches Recht (Vol. 16, no. 5, 2006) is out. Contents include:
  • Christiana Fountoulakis & Peter Jung, Die Societas Europaea als Option für multinationale Unternehmen
  • Simon Hirsbrunner & Simone Seidl, Kantonale Steuervergünstigungen im Visier der Europäischen Kommission
  • Giovanni Molo, Le secret bancaire suisse en matière de fiscalité directe et les Accords bilatéraux II
  • Mirko Zambelli, L’attuazione delle sanzioni ONU nel diritto svizzero

Thursday, July 19, 2007

Hearing: The "Hoshinmaru" Case

On July 6, Japan filed two applications with the International Tribunal for the Law of the Sea requesting the release by Russian authorities of two Japanese-flagged fishing vessels and their crew "upon such terms and conditions as the Tribunal shall consider reasonable." The first case concerns the "88th Hoshinmaru"; the second concerns the "53rd Tomimaru". Both vessels were detained for alleged violations of Russian fisheries legislation. The applications were made under Article 292 of the United Nations Convention on the Law of the Sea, and they allege breaches of Article 73(2) of the Convention. Article 73(2) requires that "[a]rrested vessels and their crews shall be promptly released upon the posting of a reasonable bond or other security." A hearing in the "Hoshinmaru" Case (docketed as Case No. 14) took place today and will continue tomorrow. A hearing in the "Tomimaru" Case (docketed as Case No. 15) is scheduled for Saturday.

Illegal fishing in the Exclusive Economic Zone (EEZ) along Russia's Pacific coast by vessels flying a variety of flags (Chinese, Japanese, North Korean, and Russian, as well as others) is frequent and has significant economic and environmental impacts. (Some of the confrontations between Russian authorities and Japanese boats take place in waters near the disputed Kuril Islands, where one Japanese fisherman was killed last year by fire from a Russian Coast Guard vessel. The two cases pending before the ITLOS apparently do not raise issues relating to the sovereignty of these islands.) At today's hearing, the Japanese agent alleged that nine Japanese vessels were arrested in the Russian EEZ during the period 2004-2006. These numbers, and the long detentions of the Japanese ships and crew, gave Japan "no other choice" than to institute these proceedings.

SFRC Treaties Hearing

On Tuesday, July 17, the Senate Foreign Relations Committee held a hearing on the pending tax, intellectual property, and commercial treaties listed below. The prepared remarks of the witnesses can be found here.
  • Protocol Amending the Convention Between the United States and Finland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital (Treaty Doc. 109-18)
  • Protocol Amending the Convention Between the United States and Denmark for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (Treaty Doc. 109-19)
  • Protocol Amending the Convention Between the United States and Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital and to Certain Other Taxes (Treaty Doc. 109-20)
  • Convention Between the United States and Belgium for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Accompanying Protocol (Treaty Doc. 110-3)
  • Patent Law Treaty and Regulations Under the Patent Law Treaty (Treaty Doc. 109-12)
  • The Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (Treaty Doc. 109-21)
  • The Singapore Treaty on the Law of Trademarks (Treaty Doc. 110-2)
  • Protocol to the 1951 Treaty of Friendship, Commerce, and Navigation between the United States and Denmark (Treaty Doc. 108-8)

Symposium on Public International Law and Economics: Additional Papers

A number of additional papers have now been posted in the Symposium "Public International Law and Economics," forthcoming in the University of Illinois Law Review. (For papers previously posted see here and here.) These include:

Kenneth W. Abbott (Arizona State Univ. - Law), Enriching Rational Choice Institutionalism for the Study of International Law. Here's the abstract:

Over the past 20 years, the rational choice (RC) approach has produced a remarkable flowering of Institutionalist theory in International Relations (IR) and a substantial body of scholarship analyzing international law as a unique institution. Yet over the same two decades international governance has become far more complex than the Institutionalist model of interstate interactions, especially through the increasing influence of non-state actors and a growing array of hard and soft norms, organizations and policies. IR has evolved accordingly, with theorists focusing on multiple actors and sources of behavior.

This article continues an ongoing effort to enrich Institutionalist theory for explanation and prescription. The article is organized around important aspects of international law and governance: creating, ratifying and enforcing international rules; soft alternatives to international law; the interplay between international and domestic actors in international regimes; efforts by international institutions to enlist support from domestic publics and to strengthen the hands of supporters; and the growth of private norms for non-state actors. Drawing on relevant IR literatures and examples of innovative governance arrangements, the article suggests how scholars can incorporate into RC Institutionalism insights from Liberal IR theory, which emphasizes non-state actors and domestic politics, and, more tentatively, from Constructivist IR theory, which emphasizes social and subjective influences such as shared beliefs, norms, perceptions of legitimacy and identities.

Anne Van Aaken (Univ. of St. Gallen - Law), Towards Behavioral International Law and Economics? Comment on Kenneth W. Abbott. Here's the abstract:
This Comment on Kenneth Abbott discusses some of the difficulties of the reception of International Law and Economics in Europe from a methodologcial point of view. It focuses on two different questions: The first discussion is concerned with the relationship of social science and international law generally: if and where social science approaches may be relevant to legal analysis. The second discussion is concerned with the question, which social science paradigm is best suited to answer questions related to international law. A Behavioral Approach to International Law and Economics seems first more acceptable to European Scholars and second a very promising line of research.

Stefan Oeter (Univ. of Hamburg - Law), Toward a Richer Institutionalism for International Law and Policy. Here's the abstract:

International relations theory - and institutionalist strands of social science theory more in general - deliver a suitable analytical tool for analyzing the international legal system. But which is the IR theory that should inform lawyers? In a very rough, binary distinction, one might distinguish rationalist and constructivist theories. The rationalist schools of thought, which are rather divergent in its details, share at least one basic methodological assumption - they assume in its models individual and collective actors that are oriented towards a rational pattern of maximizing their own positions and gains. Constructivist models, on the other hand, do not that easily merge with rationalist schools. Not that constructivism denies the importance of rational calculus. It simply works with the phenomenon that real life patterns of social behaviour are not clinically rational, but that the rationality of real life actors is to a large degree dominated by context specific 'social constructions of reality'. All rational choice based theories construe patterns of social interactions in terms of typical model interactions. If we want to explain, however, why specific actors act in a specific way, support specific legal rules (or try to evade them), make use of certain arrangements, and not of others, a constructivist model is helpful. We should in particular devote increased attention to actor-centered processes of norm creation and diffusion that unfold before norms have been fully internalized, with the ensuing phenomena of 'strategic social construction', where persuasion, socialization and internalization play at least as much a role as coercion in the form of shaming and political pressure. Competition between short-term preferences and long-term collective interests also needs attention in an institutionalist perspective.

Jide Nzelibe (Northwestern - Law), The Case Against Reforming the WTO's Enforcement Mechanism. Here's the abstract:

This Essay states the public choice case against reforming the current WTO enforcement mechanism in which parties that prevail in an international trade dispute can retaliate against the scofflaw state by suspending equivalent trade concessions. Currently, there are two distinct kinds of proposals floating around to change this mechanism to make it more incentive-compatible for all member states and user-friendly to developing nations: The first is the use of collective or third party sanctions; and the second is the imposition of monetary compensation. This Essay argues that both of these proposed reform schemes introduce potential pathologies of their own that are likely to dwarf those of the current enforcement mechanism. First, it argues that under a collective or third party sanctions scheme, the administering third-party states will have no incentive to choose a retaliation strategy that maximizes compliance because they will not face any export group pressures to do so. Rather, such states will have an incentive to choose a retaliation strategy that maximizes the returns to their protectionist interest groups. In other words, collective or third party sanctions are likely to increase the global level of protectionism without any offsetting compliance benefits. Second, it argues that the costs associated with monetary damages - including the likelihood that it will lead to socially excessive levels of litigation - are likely to be higher than its putative benefits to developing countries. Finally, the Essay suggests that pro-reform advocates tend to rely on empirical assumptions that might overstate the extent to which the current enforcement scheme actually hurts the interests of developing states.

Christian Tietje (Martin Luther Univ. - Transnational Economic Law Research Centre), The WTO Sanctions Regime and International Constitutional Political Economy. Here's the abstract:

This comment on Jide Nzelibe's paper takes the view that the existing rationale of Art. 22 DSU is to a large extent not consistent with the structure of primary obligations of WTO law. WTO law is not simply a legal system based on export-oriented exchange of concessions. Thus, a simple export pressure group-oriented public choice analysis may not comprehensively explain the problems of Art. 22 DSU. Instead, it is necessary to apply a broader constitutional political economy approach which is outlined in this comment.

Hans-Ulrich Petersmann (European Univ. Institute - Law), Why Rational Choice Theory Requires a Multilevel Constitutional Approach to International Economic Law - The Case for Reforming the WTO's Enforcement Mechanism. Here's the abstract:

This contribution argues that power-oriented, intergovernmental approaches to international economic law problems (e.g. trade sanctions in response to WTO violations) may offer less efficient and legally less effective instruments than citizen-oriented approaches (e.g. private judicial remedies in domestic courts in response to certain WTO violations). Realism, liberalism, institutionalism and constitutionalism offer complementary rather than mutually exclusive analytical approaches and policy strategies. One-sidedly power-oriented international law doctrines (as applied by Prof. Nzelibe) may lead to wrong policy conclusions; from a constitutional perspective, for instance, there are strong arguments in favor of reforming the WTO's enforcement mechanisms so as to better protect consumer welfare and other general citizen interests in open markets and judicial protection of rule of law.

George Norman (Tufts Univ. - Economics) & Joel Trachtman (Tufts Univ. - Fletcher School of Law & Diplomacy), Measuring the Shadow of the Future: An Introduction to the Game Theory of Customary International Law. Here's the abstract:

This article develops a game-theoretic model of a multilateral prisoner's dilemma in the customary international law context showing that it is plausible that states would comply with customary international law under certain conditions. This model identifies the relevant parameters, which include the value of cooperation and whether the value rises or falls with the number of states involved, the patience of states, the frequency of interaction, and the types of other relationships between the relevant states. Some of these parameters are amenable to empirical observation, or to manipulation through institutional change.

Christoph Engel (Max Planck Institute for Research on Collective Goods), Governments in Dilemma. A Game Theoretic Model for the Conclusion of Bilateral Investment Treaties. Here's the abstract:

In the official rhetoric of industrialised countries, for developing countries the conclusion of a bilateral investment treaty is a win-win solution. Empirical work has cast doubt on this. Do developing countries only agree since, otherwise, all the capital is siphoned off to other developing countries who have given in to Western pressure? In game theoretic terms, this holds if developing countries, among themselves, face a prisoner's dilemma. Whether this is true depends on the distribution of payoffs. Those who decide on the conclusion of a treaty derive utility from the expected effect of foreign direct investment on political support within their respective countries. On plausible assumptions, the actors governing developing countries play a chicken game. In pure strategies, or if one country can go first, only the first country concludes a treaty, whereas the second mover abstains. This equilibrium is particularly likely if governments of developing countries do not hold symmetric preferences.

George Nolte (Wissenschaftskolleg zu Berlin), Public International Law and Economics Concluding Remarks. Here's the abstract:

The author reviews a number of contributions for the Bonn conference on Public International Law and Economics in the light of a supposed gap between US and European lawyers. Accepting in principle that this gap exists but finetuning it to a certain extent, the author finds that some of the economic contributions are more and some are less persuasive and capable of inducing doctrinally-oriented European lawyers to broaden their approaches.

Wednesday, July 18, 2007

The Lugovoi Extradition Denial and the British Response: Good Policy?

Following the British decision on Monday to, among other things, expel four Russian diplomats because the Russian Government refused to extradite Andrei K. Lugovoi for the murder of Alexander V. Litvinenko, all expected a quick Russian rejoinder. Instead, the Russians have decided to wait to retaliate so that they can study the details of the British actions, which are not yet available. For those who do not wish to see this episode exacerbate the tense relations that already obtain between Russia and the West, this is a good sign that both sides intend to calibrate their moves in order to sequester this affair from the many other difficult issues currently on the diplomatic agenda (such as the CFE Treaty).

A number of interesting questions arise out of these events: For one, was the British reaction to the Russian refusal to extradite appropriate as a matter of policy? The issue is one of policy and not law since (as previously noted) Russia was under no international legal obligation to extradite Lugovoi. Indeed, the relevant treaty expressly permits Russia to do precisely what it did: deny extradition because the fugitive was a Russian national. And the Russian Constitution, in line with Russia's international obligations, forbids the Russian Government's extradition of Russian nationals. Now certainly there is a strong law enforcement interest in the extradition of fugitives, regardless of their nationality, especially in cases of serious crimes, and that is much of what's animating the British here. But the British reaction is counterproductive in at least three ways. First, it undercuts arguments frequently made that the Russians should pay greater adherence to the rule of law. To put it differently (as the Russians have), it is the height of hypocrisy to criticize Russia for abiding by its laws in this case. Second, the British measures undercut other legitimate bases for not extraditing fugitives. What's the difference between the U.K.'s refusal to extradite Boris Berezovsky (who, by the way, was apparently the subject of a recent Lugovoi-like assassination plot) and the Russian refusal to extradite Lugovoi if all one is concerned about is prosecuting a serious crime? Third, if a requesting State is going to take measures against a requested State even when the latter State has acted in accordance with its treaty obligations, then why should a State bother negotiating extradition treaties at all? In other words, don't the British actions make it less likely that States will enter into binding international agreements to cooperate in law enforcement matters?

Another question is whether non-extradition of nationals is declining. At Opinio Juris, Peter Spiro interestingly speculates that "perhaps the affair evidences slippage" in the "longstanding practice of countries not extraditing their own nationals." Peter cites the Convention of 27 September 1996 relating to extradition between the Member States of the European Union (not in force) and his "sense . . . that fewer bilateral extradition pacts allow parties to refuse the extradition of nationals." This is, of course, an empirical question. Without doing a full survey, the most that can be said is that over the past two to three decades there has been a general shift away from the relevance of nationality to extradition. That shift, however, may very well be due to a limited (though important) set of countries. For some years, for example, the United States has had a strong policy against non-extradition of nationals. And the European Union, in its European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, essentially eliminates the nationality of the fugitive as a ground for the denial of extradition between EU Member States. (New EU Member States, like Bulgaria and Romania, have had to amend their constitutions accordingly.) That said, recent multilateral law enforcement instruments (see, for example, the United Nations Convention Against Corruption, art. 44(11)) allow countries to decline to extradite their own nationals, provided they agree to try them for the crimes alleged. And though the United States has generally adhered to its policy (see, for example, the extradition treaties or protocols with Belize (signed in 2000), Estonia (signed in 2006), Israel (signed in 2005), Latvia (signed in 2005), Lithuania (signed in 2001), Peru (signed in 2001), and the United Kingdom (signed in 2003)), it has sometimes not been fully successful (see, for example, the extradition treaty with Malta (signed in 2006), which requires the extradition of nationals for only certain enumerated crimes) or has had to guarantee that the convicted fugitive could serve his/her sentence in his/her State of nationality (see, for example, the protocol amending the extradition treaty with Israel). Peter is certainly right that the U.K. and Russia have differing views (or values) regarding the extradition of nationals and that these differences in perspective are behind the Lugovoi extradition spat, at least in part. Interestingly, however, it appears that even in this context neither the U.K. nor any other country has explicitly stated that a rule permitting the non-extradition of nationals is outdated. Indeed, it appears that the United States hasn't even gone so far as to criticize the Russian non-extradition decision (describing it as a "matter between the UK and Russia"); instead, the United States has only called for "cooperation" between the two countries. That's no surprise, though, as Russia and the United States do not have a bilateral extradition treaty, and so, under U.S. law, the United States cannot extradite anyone to Russia, even an alleged murderer like Andrei Lugovoi.

Conference: The Emerging Jurisprudence of International Investment Law

The British Institute of International and Comparative Law will host its 9th Investment Treaty Forum Public Conference on September 14, 2007. The theme is The Emerging Jurisprudence of International Investment Law. The program is here. Topics include: Precedent in Domestic Law - A Comparative Approach; the Role for Precedent in the Expanded World of International Courts and Tribunals; Fragmentation and Custom in Investment Treaty Law; Analysis of a Developing Jurisprudence in International Investment Law; Fair and Equitable Treatment Nationality; Most-Favoured Nation Treatment ("MFN"); and Umbrella Clauses.

New Issue: Asian International Arbitration Journal

The latest issue of the Asian International Arbitration Journal (Vol. 3, no. 1, 2007) is out. Contents include:
  • John Savage, Investment Treaty Arbitration and Asia: Review of Developments in 2005 and 2006
  • Hop X. Dang, Towards a Stronger Arbitration Regime for Vietnam
  • Nakul Dewan, Arbitration in India: An Unenjoyable Litigating Jamboree!

Tuesday, July 17, 2007

Kontorovich: The Inefficiency of Universal Jurisdiction

Eugene Kontorovich (Northwestern - Law) has posted The Inefficiency of Universal Jurisdiction. This is another paper in the Symposium "Public International Law and Economics," forthcoming in the University of Illinois Law Review. Here's the abstract:

This article presents an economic perspective on universal jurisdiction ("UJ"). Under traditional jurisdictional rules, only nations with a direct connection to a crime can prosecute it. These limits amount to a "standing" doctrine for states. The relatively new notion of UJ allows all nations in the world to seek redress for certain serious international crimes, even if those nations were in no way affected. Thus, UJ amounts to a repeal of standing requirements for certain kinds of cases.

Quite often, the resolution of international problems involves some nations trading their right to prosecute certain international crimes in exchange for something more valuable. Such trades notably come in the context of amnesties that induce a despotic government to leave office, or belligerents in a civil war to law down their arms. But in fact, it is common-place for states and international criminal tribunals to waive or not exercising prosecutorial entitlements when the net benefits of prosecution are outweighed by the net costs. Such "transactions" can take many forms, such as charge bargains, exile, and, most commonly, simple sub rosa non-prosecution. And as this article shows, while controversial among academics, such trades have been made in most post-conflict situations, and have been encouraged and brokered by the international community, including the U.N.

While such deals are socially valuable - the increase the utility of the states and other parties involved - UJ makes them much harder to reach. This is because UJ greatly increases transaction costs by making ownership of the relevant entitlement - the right of to prosecute an international crime - broadly shared. When all nations effectively co-own the prosecutorial entitlement, full amnesty requires making deals with all. This in turn encourages states to strategically hold out by threatening prosecution. The increase in transaction costs may block even Pareto optimal deals.

Heintschel von Heinegg & Epping: International Humanitarian Law Facing New Challenges

Wolff Heintschel von Heinegg (Universität Viadrina Frankfurt (Oder) - Law) & Volker Epping (Leibniz Universität Hannover - Law) have published International Humanitarian Law Facing New Challenges: Symposium in Honour of Knut Ipsen (Springer 2007). Contents include:
  • Volker Epping, Confronting New Challenges: Knut Ipsen and International Humanitarian Law
  • Michael N. Schmitt, Asymmetrical Warfare and International Humanitarian Law
  • William H. Boothby, ‘The end justifies the means’ - Should this be the philosophy?
  • Stefan Oeter, Comment: Is the Principle of Distinction Outdated?
  • W. Hays Parks, Asymmetries and the Identification of Legitimate Military Objectives
  • Charles J. Dunlap, Targeting Hearts and Minds: National Will and Other Legitimate Military Objectives of Modern War
  • Steven Haines, The United Kingdom and Legitimate Military Objectives: Current Practice . . . and Future Trends?
  • Yoram Dinstein, The System of Status Groups in International Humanitarian Law
  • Torsten Stein, Collateral Damage, Proportionality and Individual International Criminal Responsibility
  • Hans-Joachim Heintze, Do Non-State Actors Challenge International Humanitarian Law?
  • Dieter Fleck, Individual and State Responsibility for Violations of the Ius in Bello: An Imperfect Balance
  • Frits Kalshoven, Some Comments on the International Responsibility of States
  • Andreas Zimmermann, Responsibility for Violations of International Humanitarian Law, International Criminal Law and Human Rights Law - Synergy and Conflict?
  • Knut Dörmann, Dissemination and Monitoring Compliance of International Humanitarian Law
  • Michael Bothe, Fact-finding as a Means of Ensuring Respect for International Humanitarian Law
  • Rainer Hofmann, Human Rights Treaty Bodies and Their Potential Role in Monitoring

New Issue: New Zealand Journal of Public and International Law

The latest issue of the New Zealand Journal of Public and International Law (Vol. 5, no. 1, June 2007) is out. Contents include:
    • Campbell McLachlan, Foreword
    • Rt. Hon. Helen Clark, Opening Address
    • José E. Alvarez, Institutionalised Legalisation and the Asia-Pacific "Region"
    • Transform Aqorau, Challenges and Prospects for Effective Tuna Management in the Western and Central Pacific
    • Steven Freeland, Towards Universal Justice - Why Countries in the Asia-Pacific Region Should Embrace the International Criminal Court
    • Andrew T.F. Lang, The Role of the Human Rights Movement in Trade Policy-Making: Human Rights as a Trigger for Policy Learning
    • Shirley V. Scott, The Political Interpretation of Multilateral Treaties: Reconciling Text with Political Reality
    • Andrew Townend, Tokelau's 2006 Referendum on Self-Government
    • Stephen Tully, The Contribution of Human Rights as an Additional Perspective on Climate Change Impacts within the Pacific

Monday, July 16, 2007

Lugovoi Extradition: British Response

Today, the United Kingdom decided to take certain actions against Russia, following the Russian Government's refusal (discussed previously here) to extradite Andrei K. Lugovoi for the murder of Alexander V. Litvinenko. As expected, the British measures include the expulsion of some Russian diplomats. Speaking before the House of Commons, Foreign Secretary David Miliband explained:

. . . . Mr Speaker, given the seriousness of the crime and our ambitions for our bilateral relationship with Russia, Russia’s reply to the [UK's] extradition is extremely disappointing. It suggests that the Russian government has failed to register either how seriously we treat this case or the seriousness of the issues involved, despite lobbying at the highest level and clear explanations of our need for a satisfactory response. I think, Mr Speaker, that it is worth reiterating why this matters. . . . .

The facts Mr Speaker are therefore that a UK citizen has suffered a horrifying and lingering death. His murder put hundreds of others, residents and visitors, at risk of radiation contamination. And the UK Government has a wider duty to ensure the safety of the large Russian community living in the UK.

The Deputy Prosecutor General’s letter says that the Russian constitution currently bars extradition. The Russian authorities have given no indication of any willingness to work with us to address this. This situation is not unique, and other countries have amended their constitutions, for example to give effect to the European Arrest Warrant. Indeed, Russia wants the EU and UK to open their borders to free movement of people, goods and services, as part of an intensification of relations. This needs to be matched by an equal Russian commitment to cross-border judicial co-operation.

Since Mr Litvinenko’s death, the Government’s key priority has been to ensure the integrity of the legal process in order to secure justice for Mr Litvinenko. The Director of Public Prosecutions made clear that the allegations against Mr Lugovoy refer to a crime against a British citizen in London. The appropriate venue for the trial is therefore London. Moreover, both the UN and the EU have reported their concern that the law in Russia is applied selectively. There would, therefore, be grounds for a legal challenge over any attempt to accept a trial in Russia.

Given the importance of this issue, and Russia’s failure to co-operate to find a solution, we need an appropriate response. Our aims are clear: first to advance our judicial process, second to bring home to the Russian government the consequences of their failure to co-operate and third to emphasise our commitment to promoting the safety of British citizens and visitors.

I have therefore agreed with colleagues across Government the following steps. First, we will expel four diplomats from the Russian Embassy in London. Second, we shall review the extent of our co-operation with Russia on a range of issues and as an initial step we have suspended visa facilitation negotiations with Russia and made other changes to visa practice. Third, international agreements mean Mr Lugovoy could be extradited to the UK if he travelled abroad. Fourth, we are grateful for the strong support we have received from EU partners and close allies, including through the EU Presidency statement on 1 June. We will discuss with partners the need for future EU-Russia engagement to take our concerns on this case into account.

Expect the Russians to respond in kind.

Does all this mean that Lugovoi can relax? No. At some point in the future, Russia, like other countries (for example, Bulgaria and Romania), may amend its constitution to provide for the extradition of its own nationals. At that time, the U.K. could renew its extradition request. Further, Lugovoi will need to be very careful should he decide to take a trip outside of Russia. In all likelihood, the U.K. has requested that Interpol issue a red notice for him, which means that Lugovoi's entry into an Interpol member country should be reported immediately to U.K. authorities. Depending on the country's domestic law, the red notice (though not itself an arrest warrant) may be considered a request for provisional arrest pending a formal extradition request. Even if the country's domestic law doesn't so provide (U.S. law is an example), upon notice of Lugovoi's entry, U.K. authorities would very quickly submit a request for provisional arrest. Consequently, Lugovoi will want to travel only to countries that do not have an extradition relationship with the United Kingdom.

Call for Papers: Australian International Law Journal

The Australian International Law Journal, an annual, peer-reviewed journal, has put out a call for submissions of articles, case notes, and book reviews on any area of public or private international law. (This year the Journal became a joint publication of the International Law Association (Australian Branch) and the Sydney Centre for International and Global Law at the Faculty of Law, The University of Sydney.) The deadline for submissions is August 31, 2007, but the editors encourage submission earlier. Articles should normally be 6,000 to 12,000 words; case notes 2,000 words; and book reviews up to 1,000 words. Submissions should be sent to the editors at:

New Issue: Fordham International Law Journal

The latest issue of the Fordham International Law Journal (Vol. 30, no. 3, Feb. 2007) is out. Contents include:
    • Kenneth Anderson, U.S. Counterterrorism Policy and Superpower Compliance with International Human Rights Norms
    • Martha Rayner, Roadblocks to Effective Representation of Uncharged, Indefinitely Imprisoned Clients at Guantánamo Bay Military Base
    • Mark Denbeaux & Christa Boyd-Nafstad, The Attorney-Client Relationship in Guantánamo Bay
    • Miles P. Fischer, Applicability of the Geneva Conventions to "Armed Conflict" in the War on Terror
    • James R. Silkenat & Peter M. Norman, Jack Bauer and the Rule of Law: The Case of Extraordinary Rendition
    • Tim Bakken, The Prosecution of War Crimes: Military Commissions and the Procedural and Substantive Protections Beyond International Law
    • Scott Horton, Kriegsraison or Military Necessity? The Bush Administration's Wilhelmine Attitude Towards the Conduct of War
    • Geert-Jan Alexander Knoops, The Proliferation of the Law of International Criminal Tribunals Within Terrorism and "Unlawful" Combatancy Trials After Hamdan v. Rumsfeld
    • Peter Margulies, When to Push The Envelope: Legal Ethics, the Rule of Law, and National Security Strategy
    • Joseph C. Sweeney, Guantanamo and U.S. Law
    • Jennifer Trahan, Military Commission Trials at Guantanamo Bay, Cuba: Do They Satisfy International and Constitutional Law?

New Issue: Michigan Journal of International Law

The latest issue of the Michigan Journal of International Law (Vol. 28, no. 3, Spring 2007) is out. Contents include:
    • Steven R. Ratner, Introduction
    • Jeffrey H. Smith, Keynote Address
    • Simon Chesterman, Secrets and Lies: Intelligence Activities and the Rule of Law in Times of Crisis
    • Charles H.B. Garraway, State Intelligence Gathering: Conflict of Laws
    • A. John Radsan, The Unresolved Equation of Espionage and International Law
    • Glenn Sulmasy & John Yoo, Counterintuitive: Intelligence Operations and International Law
    • James E. Baker, What's International Law Got to Do With It? Transnational Law and the Intelligence Mission
    • Francesca Bignami, Towards a Right to Privacy in Transnational Intelligence Networks
    • Dieter Fleck, Individual and State Responsibility for Intelligence Gathering

Sunday, July 15, 2007

Murphy: The United States and the International Court of Justice: Coping with Antinomies

Sean D. Murphy (George Washington Univ. - Law) has posted The United States and the International Court of Justice: Coping with Antinomies (forthcoming in The United States and International Courts and Tribunals, ed. Cesare Romano). Here's the abstract:

Since 1946, the United States has had an uneasy relationship with the International Court of Justice (ICJ or World Court or Court). This chapter addresses certain salient aspects of that relationship. Following an introductory Part I, Part II briefly sets forth three "antinomies" (i.e. equally rational but conflicting principles) in U.S. foreign relations that have had important ramifications for the U.S. relationship with the Court from the outset. First, the United States operates on the basis of conflicting principles with respect to the relevance of international law and institutions for U.S. foreign policy. These conflicting principles have been referred to broadly in international relations theory as realism and institutionalism. Second, the United States operates on the basis of conflicting principles with respect to whether states should be treated as equal sovereigns or as units characterized by inescapable power differentials. Third, the United States operates on the basis of conflicting principles with respect to whether international law should be "embedded" in U.S. law, including the manner in which international courts relate to U.S. law.

Part III suggests that the International Court was initially designed to accommodate such antinomies (which also exist with respect to other states, to varying degrees) by providing the means for mediating between these conflicting principles. These techniques for mediating antinomies are discussed in the context of the history of the U.S. relationship with the Court from its inception to modern times.

Part IV then briefly highlights the unfolding of these antimonies in some of the recent cases of the United States before the Court, with particular attention to the Oil Platforms case, the Israeli Wall advisory opinion, and the Breard/LaGrand/Avena cases. Among other things, Part V suggests that certain formal and informal means for mediating these antimonies may have been forgotten in the past twenty years, leading to a point where the Court readily finds fault in the United States and the United States holds the Court in very low regard. The chapter concludes that these antinomies are unlikely to be resolved through the further development of formal or informal mediating techniques. In the near term, American policymakers will seek to avoid any involvement in matters before the Court, while the Court will embrace opportunities to speak to the legality of U.S. actions.

Russia's Withdrawal from (Suspension of) the CFE Treaty

Russia has provided notice that it is withdrawing from the Treaty on Conventional Armed Forces in Europe (CFE). (The New York Times story is here; the Kremlin press release is here; the State Department press release is here; and the OSCE press release is here.) In accordance with Article 19(2) of the Treaty, Russia's withdrawal (which it terms a "suspension") will take effect in 150 days. Russia's action follows the failure of June's Extraordinary Conference of the States Parties to the CFE Treaty (discussed here), which Russia had requested because "of the serious problems that have arisen with the NATO nations' implementation of the Treaty as a result of its enlargement and NATO foot-dragging on ratification of the Agreement on the Adaptation of the CFE Treaty, signed in 1999." Russia's action is clearly an attempt to pressure the United States and other NATO countries into altering their negotiating positions before the 150-day period passes. We'll see whether it works.

UPDATE (7/16): At Opinio Juris, Duncan Hollis suggests that the Russian Government's attempt to describe its actions as a "suspension" rather than a "withdrawal" may, in fact, have some legal basis. If that is so, the legal consequences of a suspension would obviously be different from those that stem from a withdrawal. As Duncan recognizes, however, such an argument has little, if any, support in the text of the Vienna Convention on the Law of Treaties and no support in the text of the CFE Treaty. Why did the Russians use the term "suspension" then? The Russian choice of words was, no doubt, politically motivated - perhaps to distinguish its action from the U.S. withdrawal from the ABM Treaty and perhaps to send a more temperate signal (to NATO, to the press) than that connoted by the word "withdrawal." The obfuscatory choice also gives the Russians some considerable leeway down the road (should the 150-day period pass) to characterize their CFE Treaty status as they see fit. In this sense, the particular legal term of art used (withdrawal v. suspension) was a tactical choice; its relevance lies in the signal it sends now and the options it leaves open for later. It doesn't matter really that there might be no formal legal basis for a suspension. What matters is whether the relevant parties can come to an accommodation. If not, then a "suspension" is as good as a "withdrawal."