New Issue: International Organization

The latest issue of International Organization (Vol. 61, no. 3, July 2007) is out. Contents include:

• Nathan M. Jensen & Guillermo Rosas, Foreign Direct Investment and Income Inequality in Mexico, 1990-2000
• David Stasavage, Cities, Constitutions, and Sovereign Borrowing in Europe, 1274-1785
• Lucio Baccaro & Diego Rei, Institutional Determinants of Unemployment in OECD Countries: Does the Deregulatory View Hold Water?
• Sean D. Ehrlich, Access to Protection: Domestic Institutions and Trade Policy in Democracies
• Philip Keefer, Elections, Special Interests, and Financial Crisis
• R. Charli Carpenter, Studying Issue (Non)-Adoption in Transnational Advocacy Networks

New Issue: American Political Science Review

The latest issue of the American Political Science Review (Vol. 101, no. 3, August 2007) is out. Contents include:

• James D. Morrow, When Do States Follow the Laws of War?
• Judith Kelley, Who Keeps International Commitments and Why? The International Criminal Court and Bilateral Nonsurrender Agreements

New Volume: German Yearbook of International Law

The latest volume of the German Yearbook of International Law (Vol. 49, 2006) is out. Contents include:

• H. Krieger, A Nuclear Test for Multilateralism. Challenges to the Non-Proliferation Treaty as a Means of Arms Control
• D. Richter, Does International Jurisprudence Matter in Germany? The Federal Constitutional Court's New Doctrine of "Factual Precedent"
• C. Tomuschat, The International Law Commission: An Outdated Institution?
• Sir F. Berman, The ILC within the UN's Legal Framework. Its Relationship with the Sixth Committee
• O. Dörr, Codifying and Developing Meta-Rules. The ILC and the Law of Treaties
• H. P. Aust, Through the Prism of Diversity. The Articles on State Responsibility in the Light of the ILC Fragmentation Report
• R. O'Keefe, The ILC's Contribution to International Criminal Law
• M. Kamto, Les moyens de preuve devant la Cour internationale de Justice à la lumière de quelques affaires récentes portées devant elle
• O. Diggelmann, Fault in the Law of State Responsibility: Pragmatism ad infinitum?
• J. Finke, Competing Jurisdiction of International Courts and Tribunals in Light of the MOX Plant Dispute
• A. Orakhelashvili, State Immunity and International Public Order Revisited
• R. Bank & E. Schwager, Is there a Substantive Right to Compensation for Individual Victims of Armed Conflicts against a State under International Law?
• P. Dumberry, The Controversial Issue of State Succession to International Responsibility Revisited in Light of Recent State Practice

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 7, nos. 2-3, 2007) is out. Contents include:

• Kaiyan Homi Kaikobad, Crimes against International Peace and Security, Acts of Terrorism and Other Serious Crimes: A Theory on Distinction and Overlap
• Carrie McDougall, When Law and Reality Clash-The Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court's Jurisdiction over the Crime of Aggression
• Kai Ambos & Dennis Miller, Structure and Function of the Confirmation Procedure before the ICC from a Comparative Perspective
• Manisuli Ssenyonjo, The International Criminal Court and the Lord's Resistance Army Leaders: Prosecution or Amnesty?
• Mohammed Ayat, Justice pénale internationale pour la paix et la réconciliation
• Michael Plachta, Criminal Records in an Era of Globalization: Identifying Problems and Conceptualizing Solutions within the European Union
• Ralph Henham, International Sentencing in the Context of Collective Violence
• Gauthier de Beco, The Confirmation of Charges before the International Criminal Court: Evaluation and First Application
• Roberta Arnold, Witness Protection under Swiss Legislation: An Offspring of International Law
• Geert-Jan Alexander Knoops, The Transposition of Superior Responsibility onto Guerrilla Warfare under the Laws of the International Criminal Tribunals
• Gioia Greco, Victims' Rights Overview under the ICC Legal Framework: A Jurisprudential Analysis

New Issue: European Journal of International Law

The latest issue of the European Journal of International Law (Vol. 18, no. 2, Apr. 2007) is out. Contents include:

• Christopher C. Joyner, Countering Nuclear Terrorism: A Conventional Response
• Sandesh Sivakumaran, Sexual Violence Against Men in Armed Conflict
• John P. Cerone, Dynamic Equilibrium: The Evolution of US Attitudes toward International Criminal Courts and Tribunals
• Carsten Hoppe, Implementation of LaGrand and Avena in Germany and the United States: Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights
• Kal Raustiala & Stephen R. Munzer, The Global Struggle over Geographic Indications

Helfer: Monitoring Compliance with Un-Ratified Treaties

Laurence R. Helfer (Vanderbilt - Law) has posted Monitoring Compliance with Un-Ratified Treaties: The ILO Experience (Law & Contemporary Problems, forthcoming). Here's the abstract:

This article, part of an interdisciplinary symposium on international delegation, analyzes grants of authority to international organizations (IOs) to monitor compliance with un-ratified treaties and non-binding norms and standards.

It begins with a historical review of the different ways in which officials and review bodies of the International Labor Organization (ILO) to monitor compliance with treaties and recommendations that the organization has adopted but that a member state has not ratified or otherwise accepted as legally binding. The ILO membership has repeatedly expanded these monitoring powers since the organization's founding in 1919. It has done so both informally (by allowing ILO officials to expand the scope of the initial delegation that established the organization) and formally (by amending the ILO constitution to codify and further enlarge these informal expansions of the organization's monitoring authority). Taken together, these developments challenge the conventional wisdom that the delegation of authority to the ILO involves only modest sovereignty costs.

The article then uses the ILO's history to emphasize the importance of delegations that authorize international bodies to monitor compliance with nonbinding international rules. Such delegations often arise and thrive outside of the formal channels of authority. This makes it essential for scholars to look beyond treaty texts and institutional design features to consider how power is actually exercised within IOs and how the costs and benefits of international delegations change over time. Finally, the article considers what insights the ILO offers for delegations to other IOs. It argues that monitoring compliance with unconsented-to legal rules is an alternative institutional response to a problem that many IOs confront: how to ensure that all states affected by a cooperation problem participate in the resolution of that problem rather than free riding on the efforts of other countries.

Schulz: The Phenomenon of Torture

William F. Schulz (Harvard - Kennedy School of Gov't; formerly, Amnesty Int'l USA, Executive Director) has published The Phenomenon of Torture: Readings and Commentary (Univ. of Pennsylvania Press 2007). Here's the abstract:

Torture is the most widespread human rights crime in the modern world, practiced in more than one hundred countries, including the United States. How could something so brutal, almost unthinkable, be so prevalent? The Phenomenon of Torture: Readings and Commentary is designed to answer that question and many others. Beginning with a sweeping view of torture in Western history, the book examines questions such as these: Can anyone be turned into a torturer? What exactly is the psychological relationship between a torturer and his victim? Are certain societies more prone to use torture? Are there any circumstances under which torture is justified - to procure critical information in order to save innocent lives, for example? How can torture be stopped or at least its incidence be reduced?

Edited and with an introduction by the former Executive Director of Amnesty International USA, The Phenomenon of Torture draws on the writings of torture victims themselves, such as the Argentinian journalist Jacobo Timerman, as well as leading scholars like Elaine Scarry, author of The Body in Pain. It includes classical works by Voltaire, Jeremy Bentham, Hannah Arendt, and Stanley Milgram, as well as recent works by historian Adam Hochschild and psychotherapist Joan Golston. And it addresses new developments in efforts to combat torture, such as the designation of rape as a war crime and the use of the doctrine of universal jurisdiction to prosecute perpetrators. Designed for the student and scholar alike, it is, in sum, an anthology of the best and most insightful writing about this most curious and common form of abuse. Juan E. Méndez, Special Advisor to the United Nations Secretary General on the Prevention of Genocide and himself a victim of torture, provides a foreword.

Symposium on Public International Law and Economics: Still More Papers

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

Todd Sandler (Univ. of Texas, Dallas - Economics & Finance), Treaties: Strategic Considerations. Here's the abstract:

This paper presents a rationalist approach to treaty formation and adherence, where nations are motivated by their self-interest in a strategic framework that accounts for other nations' responses. Key considerations include coordination games, dynamic cooperation, institutional design, and the aggregation technology of public supply. Dynamic aspects involve multilateral cooperation under a variety of game forms. Treaty design is essential in motivating nations to fulfill obligations without the need for enforcement. Some properties of public goods - e.g., the manner in which individual contributions determine the available consumption level (i.e., the aggregation technology) - have a crucial influence over nations' incentives to adhere to treaties once ratified. The role of morality and conformity are captured in the strategic framework presented.

The analysis of this paper extends the interesting work of Goldsmith and Posner which have rejected the standard "explanations of customary international law (CIL) based on opinio juris, legality, morality, and related concepts." They have, instead, taken a positivist, rationalist viewpoint of CIL in which unitary actors, representing countries, are driven by self-interests and strategic considerations. Goldsmith and Posner's study accounts for game-theoretical interactions among states, whereby an agent adjusts for how its counterparts will react to the agent's actions. Carrying on in this tradition, the current paper indicates that treaties can be designed to be self-enforcing depending on the incentives captured by the treaty wording. The presence of strategic players need not lead to a pessimistic result For example, the Montreal Protocol on Ozone Depleting Substances resulted in a treaty where adherence has been excellent and there has been little need for enforcement at the country level. Throughout the paper, we present a host of different games that include two and many players, single and repeated plays, and a host of game forms. In particular, we do not just focus on the Prisoner's Dilemma.

Simon Evenett (University of St. Gallen - Economics), What Can Be Learned from the Game-Theoretic Analyses of Treaties? A Comment on Professor Sandler's Contribution. Here's the abstract:

In recent years a number of prominent legal scholars have joined a longer-standing tradition among economists in analysing treaties using a positivist and rationalist approach, often invoking game theoretic tools. This paper seeks to assess the boundaries of this research programme, identifying not only questions that this scholarship seeks to answer, but also those it overlooks. It is argued that some of the latter could profitably be examined using the same methodology and a number of suggestions are made in this respect. Perhaps more critically it is argued that certain key features of treaties, such as their very codification in the first place, cannot be explained by appeals to standard models of repeated games and that further refinements are necessary. It is hoped that this note will be of interest to consumers and as well as producers of the literature on treaties and other codified international agreements.

Katharina Holzinger (Univ. of Hamburg), Treaty Formation and Strategic Constellations. An Extension of Sandler. Here's the abstract:

In his article on "Treaties: Strategic Considerations" Todd Sandler analyses the conditions facilitating or impeding international cooperation. These conditions are determined by the strategic constellation of potential signatories of treaties. The strategic constellation, in turn, depends on a whole range of properties of the situation in question. Sandler shows the effects of some variation with respect to these properties, but does not treat them systematically. As an extension to Sandler I deal with a number of such properties more explicitly. I chose four basic properties which play a role in almost any situation of international treaty formation: (1) costs and benefits of the pursued public good for the interested countries, (2) demand-side properties of the public goods, (3) supply side properties, i.e. their aggregation technology, and (4) the homo- and heterogeneity of the concerned countries. The paper shows some systematic effects of the variation of such properties.

Beth Simmons (Harvard - Government), Zachary Elkins (Univ. of Illinois - Political Science), & Andrew Guzman (Univ. of California, Berkeley - Law), Competing for Capital: The Diffusion of Bilateral Investment Treaties, 1960-2000. Here's the abstract:

Over the past forty-five years, bilateral investment treaties (BITs) have become the most important international legal mechanism for the encouragement and governance of foreign direct investment. Their proliferation over the past two decades in particular has been phenomenal. These intergovernmental treaties typically grant extensive rights to foreign investors, including protection of contractual rights and the right to international arbitration in the event of an investment dispute. How can we explain the diffusion of BITs? We argue that the spread of BITs is driven by international competition among potential host countries - typically developing countries - for foreign direct investment. We design and test three different measures of economic competition. We also look for indirect evidence of competitive pressures on the host to sign BITs. The evidence suggests that potential hosts are more likely to sign BITs when their competitors have done so. We find some evidence that coercion and learning play a role, but less support for cultural explanations based on emulation. Our main finding is that diffusion in this case is associated with competitive economic pressures among developing countries to capture a share of foreign investment. We are agnostic at this point about the benefits of this competition for development.

Dinwoodie: Copyright Lawmaking Authority: An (Inter)Nationalist Perspective on the Treaty Clause

Graeme B. Dinwoodie (Chicago-Kent College of Law) has posted Copyright Lawmaking Authority: An (Inter)Nationalist Perspective on the Treaty Clause (Columbia Journal of Law & the Arts, forthcoming). Here's the abstract:

This contribution to a symposium on Copyright and The Constitution considers whether the Treaty Clause provides an alternative source of copyright lawmaking authority with respect to enactments impermissible under the Copyright Clause. Existing literature suggests three paradigmatic positions on the question. First, some scholars view the Treaty Clause as conferring a power whose content is wholly subservient to the limits of the Copyright Clause. A second group of scholars sees the Treaty Clause as offering an alternative lawmaking authority, but one that is substantially limited by the internal limits of the Treaty Clause. Finally, some commentators and litigants have read the Treaty Clause as an expansive autonomous lawmaking power that is largely unconstrained by internal limits and wholly unconstrained by the external limits found in the Copyright Clause. This paper adopts none of the three paradigmatic positions. I argue that those seeking to make the Treaty Clause subservient to the Copyright Clause both overstate the constitutional weight of the Copyright Clause and underestimate the autonomous role of the Treaty Clause in the American governmental structure. By the same token, however, the argument that the Treaty Clause should operate wholly unaffected by the limits in the Copyright Clause rests on a vision of the Treaty Clause that fails to acknowledge the multitude of ways through which international law and policy influences and informs domestic American copyright law. Support for autonomous lawmaking authority under the Treaty Clause must be tempered by the contemporary political reality that international processes may simply be an inappropriate end-run around the limits of Copyright Clause authority rather than occasional operation of an independent and different political process. And because of the entanglement between domestic and international lawmaking that now characterizes the copyright lawmaking process, reliance upon the traditional internal limits of the Treaty Clause will prove largely unavailing. The only way to make the restrictions on the Treaty Clause real is to develop a jurisprudence of judicial policing that reflects both the policy values that support the autonomy of the Treaty Clause and the realities of the contemporary copyright lawmaking process. Thus, I suggest that courts faced with reviewing copyright laws reliant upon the Treaty Clause for their constitutional legitimacy examine a matrix of at least three variables: (1) the strength of the international obligation with which domestic actors seek to comply; (2) the political process by which international norms are adopted and expressed in U.S. law; and (3) the limits in the Copyright Clause that the challenged law allegedly violates.

On Vacation (Again)

I'll be on vacation for the next two weeks, and so there will be very light posting until I return.

New Issue: International Organizations Law Review

The latest issue of the International Organizations Law Review (Vol. 3, no. 2, 2006) is out. Contents include:

• August Reinisch, How Necessary is Necessity for International Organizations?
• Niels Blokker, Professor Henry G. Schermers (1928-2006)
• Enzo Cannizzaro, A Machiavellian Moment? The UN Security Council and the Rule of Law
• Stephen Tully, The Opportunities and Challenges of Private Sector Engagement by UN Secretariats
• Jan Wouters & Dominic Coppens, International Economic Policy-making: Exploring the Legal Linkages Between the World Trade Organization and the Bretton Woods Institutions
• Sevidzem Stephen Kingah, The African Union's Capacity in Promoting Good Governance

New Issue: ASA Bulletin

The latest issue of the ASA Bulletin (Vol. 25, no. 2, 2007) is out. Contents include:

• Jean-François Poudret, Exception d'arbitrage et litispendance en droit suisse : comment départager le juge et l'arbitre?
• Markus Wirth, Neues aus der schweizerischen Gesetzgebung zur internationalen Schiedsgerichtsbarkeit: zwei Anmerkungen zum Aufsatz von Christoph Müller
• Christian Oetiker, Witnesses before the International Arbitral Tribunal
• Bruno Poulain, Clauses de la nation la plus favorisée et clauses d'arbitrage investisseur-Etat : est-ce la fin de la jurisprudence Maffezini?