Stephen C. McCaffrey (Univ. of the Pacific - Law) has published the second edition of his The Law of International Watercourses (Oxford Univ. Press 2007). Here's the abstract:The Law of International Watercourses examines the rules of international law governing the use of international rivers, lakes and groundwater shared by two or more countries. This new edition updates the entire book and adds a new chapter on the law of navigation on international waterways.
Ronald A. Brand (Univ. of Pittsburgh - Law) & Scott R. Jablonski (The Law Firm of Scott R. Jablonski, P.L.) have published Forum Non Conveniens: History, Global Practice, and Future under the Hague Convention on Choice of Court Agreements (Oxford Univ. Press 2007). Here's the abstract:With increased international trade transactions and a corresponding increase in disputes arising from those transactions, the application of the doctrine of Forum Non Conveniens - the discretionary power of a court to decline jurisdiction based on the convenience of the parties and the interests of justice - has become extremely relevant when determining which country's court should preside over a controversy involving nationals of different countries. Forum Non Conveniens: History, Global Practice, and Future Under the Hague Convention on Choice of Court Agreements provides an in-depth analysis of the common law doctrine of Forum Non Conveniens as it has evolved in the four major common law countries (UK, US, Canada, and Australia), and looks at the similarities and differences of the doctrine among those four countries. It compares Forum Non Conveniens to the more rigid analogous doctrine of Lis Alibi Pendens found in civil law countries, which requires automatic deference to the court where a dispute is first filed and explains current initiatives for coordinating jurisdictional issues between the common law and civil law systems, the most important of which is the 2005 Hague Convention on Choice of Court Agreements. The authors explain how the Hague Convention provides a rational approach to the confluence of common law and civil law doctrines and how its application to international transactions is likely to temper judicial application of the doctrine of Forum Non Conveniens and provides greater predictability with respect to enforcement of private party choice of court agreements.
Kaiyan Homi Kaikobad (Univ. of Durham - Law) has published Interpretation and Revision of International Boundary Decisions (Cambridge Univ. Press 2007). Here's the abstract:This book seeks to examine a consistent theme occurring in judgements and awards given by international tribunals in the matter of boundary disputes, a theme which is predicated on finding some sort of difficulty in the implementation of those awards and judgements. This is a feature prominent in boundary and territorial disputes inasmuch as decisions relative to title to territory and location of a boundary line are always keenly contested and hotly disputed. Two remedies which have frequently been relied on by States are those of interpretation and revision. The author sheds light on how, when and in what circumstances will the tribunal be able to interpret or revise either its own or another tribunal's decisions. By doing so, the study succeeds in contributing to an understanding of this area of the law. It is the case that the latter has largely been neglected by jurists.
Mark Thatcher (LSE - Government) has published Internationalisation and Economic Institutions: Comparing the European Experience (Oxford Univ. Press 2007). Here's the abstract:This book examines when, how and why internationalization affects national economic institutions. It confronts questions at the heart of debates in political economy and comparative politics: What does internationalization of markets mean? Who are its carriers in domestic arenas? Through which mechanisms does it affect decisions about national institutional reform? What are institutional outcomes in the face of internationalization?
The book responds to its questions by looking at key economic institutions in five strategic sectors: securities trading, telecommunications, electricity, airlines, and postal services. It compares across four countries that represent different 'varieties of capitalism', namely Britain, France, Germany and Italy, over the period between 1965 and 2005. Thus it combines cross-national, historical and cross-sectoral comparisons.
The author distinguishes technological and economic forms of internationalization from policy forms, notably decisions in powerful overseas nations and supranational regulation. He argues that, contrary to expectations, the first was met with institutional inertia. In contrast, policy forms of internationalization, namely reforms in the US and European Union regulation, played significant roles in undermining long-standing national institutions. The book explores the mechanisms whereby policy forms of internationalization were influential by looking at the strategies, coalitions and resources of key actors in national arenas. It also shows that institutional outcomes were surprising: all four countries, albeit through different routes, adopted increasingly similar reforms of economic institutions - privatization, the ending of monopolies and delegation to independent regulatory agencies.
The book rejects the view that technological and economic forms of internationalization drive institutional change. It suggests that policy forms of internationalization are more important because they become part of domestic decision making and aid the reform of well-established national institutions.
The American Bar Association's Section of International Law's Fall Meeting will be held October 3-6, 2007, in London. The program is here.
The latest issue of the Journal of International Criminal Justice (Vol. 5, no. 3, July 2007) is out. Contents include:
The latest volume of the Spanish Yearbook of International Law (Vol. 11, 2005) is out. Contents include:
As previously noted, in early July Japan filed two applications with the International Tribunal for the Law of the Sea seeking the prompt release by Russia of two fishing vessels (the "88th Hoshinmaru" and the "53rd Tomimaru") and their crew. On Monday, August 6, the Tribunal issued its judgments in these cases. In the "Hoshinmaru" Case, the court found the application well-founded and ordered the prompt release of the vessel upon the posting of a 10 million rouble bond. In the "Tomimaru" Case, the court found that the application was without object because the vessel had been confiscated in accordance with Russian law and domestic judicial remedies concerning the confiscation had been exhausted. The judgments and related documents can be found here and here.
When in the 19th century the first international organizations were created, they were first of all seen as practical platforms for interstate cooperation wherever the need arose. Organizations such as the first river commissions, the Universal Postal Union and the International Telegraph Union were not so much conceived as independent actors but rather as quasi permanent institutional frameworks where ad hoc conference diplomacy was no longer sufficient. But after the First World War, in particular after the creation of the League of Nations and the International Labour Organization, it became clear that international organizations had to be taken more seriously as new phenomena in international law and international relations. New questions emerged in practice: do international organizations have the capacity to conclude treaties? Are privileges and immunities of staff of international organizations different from those of diplomats? Legal doctrine increasingly paid attention to these new phenomena and to new questions that came with them.
During and after the Second World War a number of new international organizations were created: universal organizations such as the United Nations and the specialized agencies, regional organizations, organizations for specific fields of cooperation such as collective self-defence or commodity trade. It was recognized that international organizations could not perform their functions without having a status independent from their sovereign members. A substantial acquis institutionnel was developed in the law and practice of international organizations. Parts of this acquis are the acceptance of the separate legal personality of international organizations and the independence of their secretariats and staff.
In particular since the 1990s, after the end of the Cold War, new perspectives for international cooperation emerged and international organizations could increasingly use their powers. Within Europe, new steps were made in European integration with the creation of the European Union. The United Nations created more peacekeeping operations than ever before. New organizations were created, such as the World Trade Organization, the Organization for the Prohibition of Chemical Weapons and the International Criminal Court. However, this new dynamism did not only bring successes. Still in the 1980s, the International Tin Council collapsed. In the 1990s the UN was unable to prevent the genocides in Rwanda and in Srebrenica. The need for international organizations to be accountable for their work became more prominent; existing accountability mechanisms were no longer considered sufficient. In 2002, the International Law Commission started its work on the topic of responsibility of international organizations.
In addressing these developments, this two-day Leiden conference will pay particular attention to the requirements of independence and accountability of international organizations. Do rules relating to the independence of international organizations (such as those on immunity from jurisdiction) hamper the development of accountability rules and mechanisms? Or do they protect organizations against improper interference in their work by members under the guise of accountability? Does the present quest for accountability of organizations threaten their independence? Or does greater accountability increase confidence in the work of organizations and is it a conditio sine qua non for preserving their independence?
The Leiden conference will bring together academics and practitioners active in this area of public international law. All too often these two groups prove to interact insufficiently. Yet, for a proper understanding of the evolution of practice academics should not close their eyes for evolving realities, while a better understanding of theory will enhance the practitioners’ skills in analysis and prudent decision-making. The conference therefore aims to benefit from both the fruits of scholarly research and the insights of practical experience.
The first part of the conference will focus on research. To what extent does the changing international environment affect the way in which academics approach international organizations? In this respect it is not a coincidence that the conference is organized exactly fifty years after Henry G. Schermers defended his dissertation on the specialized agencies. Schermers rapidly became one of the pioneers in the area of international institutional law. It is interesting to recall that Schermers in 1957 compared the specialized agencies to embryonic ministries of a non existent world government. It is obvious that the position of international organizations, including the specialized agencies, has changed in the last five decades. How are these changes reflected in the work of leading contemporary authors on international institutional law? What are challenges for the future? Is there a future for this field of law?
The second part of the conference (Friday afternoon) will concentrate on the present work of the UN International Law Commission relating to the issue of "Responsibility of International Organizations". ILC Rapporteur Gaja will give his views on the present state of affairs of this work and will discuss important outstanding questions.
In the third part of the Conference (Saturday morning) some legal advisers of international organizations will shed a light on their work. To what extent has the position and the work of the legal adviser changed? To what extent is he or she in practice confronted with questions relating to independence and accountability? To what extent does the legal adviser of an international organization take into account how questions with which he is confronted are dealt with by colleagues in other organizations?
There are various concrete issues where the requirements of independence and accountability play a role. One of the most prominent and difficult examples is in the area of UN peace operations, to be discussed in the fourth and final part of the conference (Saturday afternoon). Who is responsible for human rights and humanitarian law violations in such operations: the organization, the members, or both? How to deal with accountability gaps that may exist? If the organization is in principle responsible, how to implement such responsibility in practice?
Michael D. Ramsey (Univ. of San Diego - Law) has published The Constitution's Text in Foreign Affairs (Harvard Univ. Press 2007). Here's the abstract:Opinio Juris has conducted a symposium on the book, with posts by Ramsey and other experts in the area (see here and related posts).This book describes the constitutional law of foreign affairs, derived from the historical understanding of the Constitution's text. It examines timeless and recurring foreign affairs controversies - such as the role of the president and Congress, the power to enter armed conflict, and the power to make and break treaties - and shows how the words, structure, and context of the Constitution can resolve pivotal court cases and leading modern disputes. The book provides a counterpoint to much conventional discussion of constitutional foreign affairs law, which tends to assume that the Constitution's text and history cannot give much guidance, and which rests many of its arguments upon modern practice and policy considerations.
Using a close focus on the text and a wide array of historical sources, Michael Ramsey argues that the Constitution's original design gives the president substantial independent powers in foreign affairs. But, contrary to what many presidents and presidential advisors contend, these powers are balanced by the independent powers given to Congress, the Senate, the states, and the courts. The Constitution, Ramsey concludes, does not make any branch of government the ultimate decision maker in foreign affairs, but rather divides authority among multiple independent power centers.
The latest issue of the American Journal of International Law (Vol. 101, no. 2, April 2007) is out. Contents include:
The latest issue of the Human Rights Law Review (Vol. 7, no. 3, 2007) is out. Contents include:
The latest volume of the Hague Yearbook of International Law (Vol. 19, 2006) is out. Contents include:
The latest issue of the Journal of World Investment & Trade (Vol. 8, no. 3, June 2007) is out. Contents include:
Using the accounts of Gewirth and Griffin as examples, the article criticises accounts of human rights as those are understood in human rights practices, which regard them as rights all human beings have in virtue of their humanity. Instead it suggests that (with Rawls) human rights set the limits to the sovereignty of the state, but criticises Rawls conflation of sovereignty with legitimate authority. The resulting conception takes human rights, like other rights, to be contingent on social conditions, and in particular on the nature of the international system.
Russia's flag-planting caper at the North Pole last week captured the world’s attention. Harking back to the heady days of colonial imperialism and perhaps the success of Sputnik, a resurgent Russia dispatched from Murmansk a nuclear-powered icebreaker and a research vessel armed with two mini-submarines to stake a symbolic claim to the Arctic Ocean’s riches. Russia hopes that leaving its flag encased in titanium more than 13,200 feet beneath the frozen surface bolsters its 2001 claim that the Lomonosov Ridge is a geological extension of its continental shelf and thus the 460,000 square miles of resource-rich Arctic waters stretching from the North Pole to Eurasia fall under the Kremlin’s jurisdiction.
"The Arctic is ours and we should manifest our presence," declared Artur Chilingarov, the celebrated polar explorer who led the expedition.
Russia isn’t alone in the great Arctic race. Thawing of the Arctic ice cap has opened access to billions of tons of oil and gas, valuable minerals like gold and platinum and untapped fishing stocks, and all the countries bordering the Arctic are staking a claim. Denmark has spent more than a quarter of a billion dollars to prove that the Arctic once was attached to Greenland, its possession. Finland, Norway and Iceland also have their eyes on the Arctic. And Canada is spending $7 billion to build a fleet of armed Arctic patrol vessels.
"Canada has a choice when it comes to defending our sovereignty over the Arctic," Prime Minister Stephen Harper said. "We either use it or lose it. And make no mistake, this government intends to use it."
Will the rhetoric escalate into armed brinksmanship on the ice? History offers reason not to worry. Fifty years ago, the South Pole was the scene of a similar showdown. Seven countries - Britain, Argentina, Chile, France, Norway, Australia and New Zealand - had made claims to territory in Antarctica. These and other countries had established dozens of "scientific" stations on the continent. In 1956, the United States launched Operation Deep Freeze II, the last of four huge naval expeditions to fly the Stars and Stripes in the Antarctic.
Ultimately though, in a spirit of cooperation rare during the cold war, fostered by the 1957-58 International Geophysical Year, 12 countries signed onto a treaty that established a legal framework to govern the southernmost continent. The treaty prohibited nuclear explosions, radioactive waste disposal and military deployments on Antarctica. And it encouraged continued international cooperation in scientific research. The overlapping territorial claims were not relinquished, but "frozen."
A similar diplomatic solution could put an end to the Arctic arms race today. The 2007-08 International Polar Year, a scientific research effort comparable to the International Geophysical Year, presents an opportunity to propose a treaty. The United States, which has 1,000 miles of coastline in the Arctic, should work to convene an international conference at which all the countries bordering the Arctic could settle their sovereignty disputes in an organized and transparent way.
The so-called Arctic states - Canada, Denmark, Finland, Iceland, Norway, Sweden, Russia and the United States - already participate in an intergovernmental body, the Arctic Council, which manages the environment of the Arctic. But a comprehensive Arctic treaty could go much further. It could arrange for sustainable development of Arctic resources, do the seafloor mapping that’s needed to sort out the conflicting territorial claims, develop shipping shortcuts through the northern passages, set technological standards for ships that navigate the icy waters and guard the welfare of the more than one million indigenous people living within the Arctic Circle.
The United States should take preliminary steps to set the complicated treaty effort in motion. First, the Senate should immediately ratify the 1982 United Nations Convention on the Law of the Sea, which would enable the United States to make its claim to the continental shelf extending northward from Alaska, and guarantee freedom of navigation for our Navy.
We should also explore making agreements with Russia, Canada, Denmark and other countries that would allow for cooperation in gathering weather data, running search and rescue missions and responding to oil spills - even before a larger treaty could be negotiated.
In order to back up claims of sovereignty in the Arctic, the United States should also establish a presence there, and that would mean reinvigorating our geriatric icebreaker fleet. Even though our Navy is as large as the next 17 navies in the world combined, we own only three ships intended for polar missions. Two of them are in disrepair, and the third is not robust enough for future Arctic missions. Russia, in comparison, has a fleet of 18 icebreakers. We should have enough ships to maintain a presence at both poles.
Disputes over maritime boundaries, particularly in the complex icy geography of the Arctic Ocean, require international solutions. No one wins if the region remains a lawless frontier. All the Arctic countries need a treaty that protects the environment as well as their national interests. Global warming has created the need for bold diplomatic action.
The line between soldier and civilian has long been central to the law of war. Today that line is being blurred in the struggle against transnational terrorists. Since 9/11 the Bush administration has sought to categorize members of Al Qaeda and other jihadists as "unlawful combatants" rather than treat them as criminals.
The federal courts are increasingly wary of this approach, and rightly so. In a stinging rebuke, this summer a federal appeals court in Richmond, Va., struck down the government’s indefinite detention of a civilian, Ali al-Marri, by the military. The case illustrates once again the pitfalls of our current approach.
Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers. Under the law of war, military service members receive several privileges. They are permitted to kill the enemy and are immune from prosecution for doing so. They must, however, carefully distinguish between combatant and civilian and ensure that harm to civilians is limited.
Critics have rightly pointed out that traditional categories of combatant and civilian are muddled in a struggle against terrorists. In a traditional war, combatants and civilians are relatively easy to distinguish. The 9/11 hijackers, by contrast, dressed in ordinary clothes and hid their weapons. They acted not as citizens of Saudi Arabia, an ally of America, but as members of Al Qaeda, a shadowy transnational network. And their prime targets were innocent civilians.
By treating such terrorists as combatants, however, we accord them a mark of respect and dignify their acts. And we undercut our own efforts against them in the process. Al Qaeda represents no state, nor does it carry out any of a state’s responsibilities for the welfare of its citizens. Labeling its members as combatants elevates its cause and gives Al Qaeda an undeserved status.
If we are to defeat terrorists across the globe, we must do everything possible to deny legitimacy to their aims and means, and gain legitimacy for ourselves. As a result, terrorism should be fought first with information exchanges and law enforcement, then with more effective domestic security measures. Only as a last resort should we call on the military and label such activities "war." The formula for defeating terrorism is well known and time-proven.
Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon. For all these reasons, the more appropriate designation for terrorists is not "unlawful combatant" but the one long used by the United States: criminal.
The second major problem with the approach of the Bush administration is that it endangers our political traditions and our commitment to liberty, and further damages
America’s legitimacy in the eyes of others. Almost 50 years ago, at the height of the cold war, the Supreme Court reaffirmed the "deeply rooted and ancient opposition in this country to the extension of military control over civilians."
A great danger in treating operatives for Al Qaeda as combatants is precisely that its members are not easily distinguished from the population at large. The government wields frightening power when it can designate who is, and who is not, subject to indefinite military detention. The Marri case turned on this issue. Mr. Marri is a legal resident of the United States and a citizen of Qatar; the government contends that he is a sleeper agent of Al Qaeda. For the last four years he has been held as an enemy combatant at the Navy brig in Charleston, S.C.
The federal court held that while the government can arrest and convict civilians, under current law the military cannot seize and detain Mr. Marri. Nor would it necessarily be constitutional to do so, even if Congress expressly authorized the military detention of civilians. At the core of the court’s reasoning is the belief that civilians and combatants are distinct. Had Ali al-Marri fought for an enemy nation, military detention would clearly be proper. But because he is accused of being a member of Al Qaeda, and is a citizen of a friendly nation, he should not be treated as a warrior.
Cases like this illustrate that in the years since 9/11, the Bush administration’s approach to terrorism has created more problems than it has solved. We need to recognize that terrorists, while dangerous, are more like modern-day pirates than warriors. They ought to be pursued, tried and convicted in the courts. At the extreme, yes, military force may be required. But the terrorists themselves are not "combatants." They are merely criminals, albeit criminals of an especially heinous type, and that label suggests the appropriate venue for dealing with the threats they pose.
We train our soldiers to respect the line between combatant and civilian. Our political leaders must also respect this distinction, lest we unwittingly endanger the values for which we are fighting, and further compromise our efforts to strengthen our security.
