IMF: Two Nominees

The IMF Executive Board issued the following statement yesterday:

The Executive Board has received the nominations of Mr. Dominique Strauss-Kahn and Mr. Josef Tošovský for the position of IMF Managing Director, and will now begin the formal selection process. The deadline for nominations expired on August 31.

Mr. Strauss-Kahn, a French national and former Finance Minister of France, was nominated by the Executive Director for Germany, Mr. Klaus Stein, on behalf of the Executive Directors representing the countries of the European Union. Mr. Tošovský, a Czech national and former Prime Minister and Central Bank Governor of the Czech Republic, was nominated by the Executive Director for the Russian Federation, Mr. Aleksei Mozhin.

The Executive Board will consider the candidates on the basis of their professional record and qualifications (see Press Release No. 07/159). During the coming month, the Executive Board intends to interview the candidates in Washington, D.C. and, thereafter, meet to discuss the strengths of the candidates and make a selection.

New Issue: Journal of International Economic Law

The latest issue of the Journal of International Economic Law (Vol. 10, no. 3, September 2007) is out. Contents include:

• William J. Davey, The Future of International Economic Law
• Hector R. Torres, Reforming the International Monetary Fund - Why its Legitimacy is at Stake
• Frank J. Garcia, Global Justice and the Bretton Woods Institutions
• Debra P. Steger, The Culture of the WTO: Why it Needs to Change
• Thomas Cottier, Preparing for Structural Reform in the WTO
• Daniel C. Esty, Good Governance at the World Trade Organization: Building a Foundation of Administrative Law
• Ernst-Ulrich Petersmann, Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice
• Seung Wha Chang, WTO for Trade and Development Post-Doha
• Frederick M. Abbott, A New Dominant Trade Species Emerges: Is Bilateralism a Threat?
• Matthew Schaefer, Ensuring that Regional Trade Agreements Complement the WTO System: US Unilateralism a Supplement to WTO Initiatives?
• Gary Hufbauer & Sherry Stephenson, Services Trade: Past Liberalization and Future Challenges
• Joel P. Trachtman, Regulatory Jurisdiction and the WTO
• Andrew Green & Michael Trebilcock, Enforcing WTO Obligations: What Can We Learn from Export Subsidies?
• Steve Charnovitz, The WTO’s Environmental Progress
• David J. Gerber, Competition Law and the WTO: Rethinking the Relationship
• Won-Mog Choi, The Present and Future of The Investor-State Dispute Settlement Paradigm

Rosenne: Interpretation, Revision and Other Recourse from International Judgments and Awards

Shabtai Rosenne has published Interpretation, Revision and Other Recourse from International Judgments and Awards (Martinus Nijhoff Publishers 2007). Here's the abstract:

Although there had been a few cases of the interpretation of judgments of the Permanent Court of International Justice and the International Court of Justice, it was not until the mid-1980s that serious judicial discussion of the related problems of the interpretation and revision by the International Court of one of its own judgments came before the Court. Similar cases have also arisen in international arbitration proceedings between States. Interpretation, revision, and other forms of ‘reference’ to the International Court from some other international body, court or arbitral tribunal have produced a complex pattern of black letter texts supplemented by an even more complex set of judge made rules and practices. The close tie between the final decision and the highly political context of the obligation to comply with it produces a continuing tension between the finality of the decision and any one of the possible references in recourse from it. If any tendency can be discerned from the relevant materials it is in the strong preference for maintaining the integrity and the authority of the res judicata, provided that no obvious miscarriage of justice is engendered. Interpretation is preferable to revision.

Shany: Regulating Jurisdictional Relations Between National and International Courts

Yuval Shany (Hebrew Univ. - Law) has published Regulating Jurisdictional Relations Between National and International Courts (Oxford Univ. Press 2007). Here's the abstract:

This book seeks to investigate the growing jurisdictional interaction between national and international courts ie: their parallel involvement in the same or related disputes in the light of competing theoretical, ideological and methodological discourses on the nature of the relationship and the means to regulate it. In particular, it aims to explore what, if any, rules of international law could, or perhaps should govern such interactions, and regulate forum selection or multiple proceedings involving national and international courts. In addition, the book explores the standards of review employed by international courts vis-à-vis the decisions of their domestic counterparts and vice versa. It posits that the regulation of such interactions ultimately depends on the selection of the overarching paradigm that governs the relations between national and international courts (hierarchical as opposed to non-hierarchical and disintegrative or integrative conceptual frameworks).

Following academic discussion of the problems and solutions pertaining to the interaction between national and international courts, the book considers the potential applicability of several jurisdiction-regulating measures to jurisdictional interactions between national and international courts. These include rules on forum selection and rules designed to regulate multiple proceedings (e.g., lis alibi pendens and res judicata), utilization of comity based measures and doctrines, such as discretionary stay or dismissal of proceedings and margin of appreciation judicial review, and examination of the prohibition against abuse of rights. This segment of the book strives to provide lawyers and academics with a 'tool kit' of measures which could be employed in cases involving jurisdictional interactions between national and international courts.

New Issue: Leiden Journal of International Law

The latest issue of the Leiden Journal of International Law (Vol. 20, no. 3, October 2007) is out. Contents include:

• Susan Marks, Torture and the Penal Colony
• Jacqueline Mowbray, The Right to Food and the International Economic System: An Assessment of the Rights-Based Approach to the Problem of World Hunger
• Brian Orend, Jus Post Bellum: The Perspective of a Just-War Theorist
• Fabián O. Raimondo, The International Court of Justice as a Guardian of the Unity of Humanitarian Law
• Guido Acquaviva, Human Rights Violations before International Tribunals: Reflections on Responsibility of International Organizations
• Michael Waibel, Two Worlds of Necessity in ICSID Arbitration: CMS and LG&E
• Jean D'Aspremont, Regulating Statehood: The Kosovo Status Settlement
• Marc Cogen & Eric De Brabandere, Democratic Governance and Post-conflict Reconstruction

New Issue: Northwestern Journal of International Law & Business

The latest issue of the Northwestern Journal of International Law & Business (Vol. 27, no. 3, Spring 2007) is out. Contents include:

• Symposium on International Energy Law
• David Van Zandt, Introduction: Developments in International Energy Law
• Adam M. Dinnell & Adam J. Russ, The Legal Hurdles to Developing Wind Power as an Alternative Energy Source in the United States: Creative and Comparative Solutions
• Alexia Brunet & Juan Agustin Lentini, Arbitration of International Oil, Gas, and Energy Disputes in Latin America
• Wenhua Shan, From "North-South Divide" to "Private-Public Debate": Revival of the Calvo Doctrine and the Changing Landscape in International Investment Law
• Alexia Brunet & Meredith Shafe, Beyond Enron: Regulation in Energy Derivatives Trading

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 22, no. 8, August 2007) is out.

New Issue: Virginia Journal of International Law

The latest issue of the Virginia Journal of International Law (Vol. 47, no. 3, Spring 2007) is out. Contents include:

• Daniel Tan, Enforcing International Arbitration Agreements in Federal Courts: Rethinking the Court's Remedial Powers
• Chris Downes, Must the Losers of Free Trade Go Hungry? Reconciling WTO Obligations and the Right to Food
• Christopher C. Joyner, "The Responsibility to Protect": Humanitarian Concern and the Lawfulness of Armed Intervention
• Winston P. Nagan & Craig Hammer, Communications Theory and World Public Order: The Anthropomorphic, Jurisprudential Foundations of International Human Rights

IMF Managing Director Selection: Anticlimax?

In accordance with a July decision by the IMF Executive Board, the nomination period for the position of IMF Managing Director will close in two days, on Friday, August 31. (The position is open because the current Managing Director, Rodrigo de Rato, unexpectedly announced at the end of June his intention to resign his post following the conclusion of the 2007 Annual Meetings of the IMF and the World Bank Group in October.) Traditionally, managing directors have been (western) Europeans chosen by (western) Europeans, just as the presidents of the World Bank have been U.S. nationals chosen by the United States. Those assumptions concerning the choice and nationality of these top positions have come under severe criticism in recent years, from "emerging" countries, such as Brazil, China, India, and South Africa, from some European countries, such as the Netherlands, Norway, and the United Kingdom, from a number of NGOs, and from numerous newspaper editorial boards, including the Financial Times. And there was some anticipation that the reformer countries (and others) would challenge the status quo by nominating their own candidate for the IMF spot. But they haven't. Instead, the European Union, which now believes that it speaks for Europe in these matters, chose Dominique Strauss-Kahn, a French national, early in the process. Russia has tried to disrupt things recently by nominating Josef Tošovský, a former head of the Czech National Bank, a move that the Czech Republic (now a EU Member State) quickly rejected. But Russia, for obvious reasons, can hardly lead the way on this issue (its motives are, shall we say, complex), and it is unclear whether the reformers will support Tošovský. It now appears likely that Strauss-Kahn will get the nod from the IMF Board, though it's possible that his appointment will not be a simple and easy anointment. It appears equally likely, though, that the tradition's days are numbered. Even Jean-Claude Juncker, head of the Eurogroup (the collection of finance ministers of countries that have adopted the Euro), has recently acknowledged as much.

Green: Repressing Erie's Myth

Roger Craig Green (Temple Univ. - Law) has posted Repressing Erie's Myth (California Law Review, forthcoming). Here's the abstract:

This Article seeks to alter basic perceptions of Erie v. Tompkins. Everyone knows Erie's requirement that federal courts apply state substantive law in diversity cases. But for some scholars and judges, Erie means much more. The case has been enlisted to serve such wideranging causes as positivism, federalism, and separation of powers. And in 2004, the Supreme Court used Erie to restrict the availability of human rights lawsuits in U.S. courts. My goal is to limit exaggerations of Erie's importance and forestall resultant threats to judicial power. This critique of Erie's myth has three parts: First, I attack the old myth (espoused by Brandeis, Friendly, John Hart Ely, and others) that Erie is based on constitutional federalism. Second, I criticize the new myth claim (advanced by Curtis Bradley, Jack Goldsmith, and Sosa v. Alvarez-Machain) that Erie is based on separation of powers. In this analysis, I compare Sosa with Hamdan v. Rumsfeld, which denied the new myth's broadest consequences. Third, I offer a new model for federal common law, which analyses common-lawmaking consistently with other judicial work. My model parallels Jackson's account of exeutive power in Youngstown Steel. Specifically, I suggest that federal common law should (i) be favored when authorized by Congress, (ii) be disfavored when proscribed by Congress, and (iii) occupy a zone of twilight when Congress has not addressed the issue. Erie is a fine ruling in its original context, but it is implausible as a general theory of judicial power. Only by seeing Erie for what it is can one resist modern efforts to draw strong anti-judicial ideas from this iconic case's shadows.

Noriega Extradition: Certification of Extraditability

As noted previously, for Manuel Noriega to be extradited to France, where he is wanted on money laundering charges, a magistrate judge would need to determine that he is extraditable. Today, that happened. Magistrate Judge William C. Turnoff of the U.S. District Court for the Southern District of Florida made the determination, finding that there is an extradition treaty in force between the United States and France, that Noriega is charged with a crime in France, that the offenses for which Noriega is wanted are covered by the U.S.-France Extradition Treaty, that Noriega is the same person wanted by France for those charges, and that sufficient evidence has been presented to establish probable cause that Noriega committed the charged offenses. (He must have also rejected any other challenges to extradition, including, possibly, those raised previously regarding Noriega's POW status.) Noriega's attorney is quoted as saying "I can assure this court and everyone else you haven’t heard the end of this," which seems to suggest that Noriega will file a habeas petition challenging the certification. If that petition is dismissed and if that dismissal is affirmed on appeal, pursuant to statute, it will be up to the Secretary of State to make the final determination as to whether Noriega should be sent to France.

Corn: Questioning the Jurisdictional Moorings of the Military Commission Act

Geoffrey S. Corn (South Texas College of Law) has posted Questioning the Jurisdictional Moorings of the Military Commission Act (Texas International Law Journal, forthcoming). Here's the abstract:

Of the many controversial legal questions generated by the passage of the Military Commission Act of 2006, perhaps the most fundamental is that of jurisdiction. This question has lingered beneath the surface of the legitimacy of the use of these tribunals to try alleged al Qaeda operatives since they were first created by President Bush. Unfortunately - or for advocates of the use of these tribunals perhaps fortunately - the seminal challenge to the validity of the Military Commission, Hamdan v. Rumsfeld, was resolved in favor of the Petitioner without reaching this underlying question. However, the rapid response by Congress to provide a statutory foundation for resurrecting this means to try detainees associated with the Global War on Terror once again raises this difficult but critical question related to the legitimacy of such trials. This Essay will briefly address why this author believes the scope of jurisdiction established by the MCA exceeds the bounds of legitimate use of such tribunals.

Hathaway: Two More Papers

Oona A. Hathaway (Yale - Law) has posted two more papers:

International Delegation and State Sovereignty (Law & Contemporary Problems, forthcoming). Here's the abstract:

The growing strength and reach of international law over the last half century has deepened existing tensions between the ideals of state sovereignty and international order based on law. State sovereignty requires that states have ultimate and independent authority to govern themselves and those within their territory. Yet states now routinely make legal promises that are perceived to lie in direct conflict with this conception of sovereignty, including delegating to international institutions authority that has traditionally been held exclusively by states. This has given rise to a powerful backlash in the United States and elsewhere. Critics of international law fear that its ever-expanding scope will encroach on domestic law and authority, taking power from local authorities and delegating it to international actors that are far removed - physically, culturally, and politically - from those they seek to govern. This article takes up the challenge to international law posed by these critiques. It argues that the critics of international law err in assuming that states' sovereignty almost always suffers when states delegate authority to international institutions. In doing so, they portray the costs of delegation as larger than they in fact are. Moreover, recent work has lost sight of some of the substantial benefits of cooperation.

Part I of this article outlines the challenge to sovereignty posed by international law and especially international delegation, focusing on recent debates over the influence of international legal commitments on domestic governance. Part II reconsiders the sovereignty costs of international delegation. It argues in particular that when we take account of state consent to delegation, the scope of conflict between sovereignty and international delegation is substantially narrowed. Nonetheless international delegation can be in tension with state sovereignty, and the article outlines the key sources of this tension as a preface to a discussion of the other side of the cost-benefit equation - namely, the potential benefits. Part III of the article turns to these benefits, asking how the intrusion of international law into areas that were once exclusively domestic might be explained and justified. Whether sovereignty costs lead us to question the wisdom of specific delegations hinges on the benefits that balance against those costs. By exploring both sides of the equation in greater depth, we can come to a deeper and more empirically grounded argument about the proper role of international law and delegation in an age of global interdependence. When we do, we discover that international is often more accurately seen as an exercise of state sovereign authority than a diminution of it.

Why Do Countries Commit to Human Rights Treaties? (Journal of Conflict Resolution, Vol. 51, no. 4, August 2007). Here's the abstract:

This article examines states' decisions to commit to human rights treaties. It argues that the effect of a treaty on a state - and hence the state's willingness to commit to it - is largely determined by the domestic enforcement of the treaty and the treaty's collateral consequences. These broad claims give rise to several specific predictions. For example, states with less democratic institutions will be no less likely to commit to human rights treaties if they have poor human rights records, because there is little prospect that the treaties will be enforced. Conversely, states with more democratic institutions will be less likely to commit to human rights treaties if they have poor human rights records - precisely because the treaties are likely to lead to changes in behavior. These predictions are tested by examining the practices of more than 160 countries over several decades.

Sarei v. Rio Tinto, PLC - En Banc Review Granted

On August 20, the Ninth Circuit granted the defendants-appellees' petition for rehearing en banc in Sarei v. Rio Tinto, PLC. (The briefs filed on the petition for rehearing can be found here.) Papua New Guinea nationals first filed suit in 2000 under to the Alien Tort Statute, alleging, inter alia, complicity in war crimes and crimes against humanity, violations of the United Nations Convention on the Law of the Sea (environmental harms), and racial discrimination by the defendant mining companies. The district court granted the defendants' motion to dismiss (under Rule 12(b)(6)) in July 2002. The case was first argued before the Ninth Circuit on September 8, 2003 and reargued July 23, 2005 (following the Supreme Court's decision in Sosa v. Alvarez-Machain). The panel issued its first opinion on August 7, 2006, but, on petition for rehearing or rehearing en banc, the panel withdrew its 2006 opinion and issued a new opinion on April 12, 2007. In that opinion, the panel reversed or vacated the district court's dismissal of the plaintiffs' claims on justiciability grounds (political questions, act of state, and international comity). The panel affirmed the district court's finding that the plaintiffs were not required to exhaust remedies in Papua New Guinea. The 2007 panel opinion has now been withdrawn by the en banc court, the opinion of which will be greatly anticipated.

New Issue: Ocean Development & International Law

The latest issue of Ocean Development & International Law (Vol. 38, no. 3, 2007) is out. Contents include:

• Lawrence Juda, The European Union and Ocean Use Management: The Marine Strategy and the Maritime Policy
• Joanna Mossop, Protecting Marine Biodiversity on the Continental Shelf Beyond 200 Nautical Miles
• Nguyen Hong Thao & Ramses Amer, Managing Vietnam's Maritime Boundary Disputes

Hathaway: Hamdan v. Rumsfeld: Domestic Enforcement of International Law

Oona A. Hathaway (Yale - Law) has posted Hamdan v. Rumsfeld: Domestic Enforcement of International Law (in International Law Stories, forthcoming). Here's the abstract:

International law has long been subjected to the charge that it isn't really law - at least not in the sense that we usually imagine law. There is no international police force standing ready to enforce the laws of the international community against states that violate them. There is no court system that can adjudicate violations and assess penalties. And, with a few exceptions, there is no mechanism for penalizing states found to have fallen short of the law's rules. This has led some to conclude that most of international law is little more than cheap talk - words not backed up deeds and, hence, without any real force. And yet this view of international law misses much of what makes international law relevant and powerful: International law is not only enforced by states against one another, but it is also enforced by states against themselves. That is to say, it is enforced by domestic courts and political institutions that pressure their own government to live up to the promises it has made; it is enforced by individuals and interest groups that pressure the political branches of government to live up to international legal commitments they have made, whether they can be enforced in the courts or not; and it enforced by individuals or groups that use a state's own court system to enforce international law through litigation. It is this missing part of the picture - the enforcement of international law at home - that this essay brings to light.

This essay explores these issues through the lens of one of the most important international law cases in the United States in at least the last decade: Hamdan v. Rumsfeld. The case powerfully illustrates both the promise and limits of domestic enforcement of international law. The circumstances that gave rise to it demonstrate the hurdles that domestic enforcement of international law faces in even the most robust democracies. It stands as a stark reminder that the domestic enforcement of international law relies not only on the existence of robust rule of law institutions, but also on the ability of those institutions to reach the cases in which international legal rules are at stake. And yet Hamdan also offers a more hopeful message: Domestic enforcement of international law can succeed even where there is stringent resistance by even the most powerful of political actors. The story of Hamdan is thus the story of both the fragility and the power of domestic enforcement of international law, and in this story lies broader lessons for the promise and limits of international law as a whole.

New Issue: ICSID Review: Foreign Investment Law Journal

The latest issue of the ICSID Review: Foreign Investment Law Journal (Vol. 21, no. 2, Fall 2006) is out. Contents include:

• Gilles Cuniberti, Parallel Litigation and Foreign Investment Dispute Settlement
• Aurélia Antonietti, The 2006 Amendments of the ICSID Rules and Regulations and the Additional Facility Rules
• Thomas W. Wälde, Denial of Justice: A Review Comment on Jan Paulsson, Denial of Justice in International Law

New Issue: Columbia Journal of Transnational Law

The latest issue of the Columbia Journal of Transnational Law (Vol. 45, no. 3, 2007) is out. Contents include:

• Gregory S. Gordon, Toward an International Criminal Procedure: Due Process Aspirations and Limitations
• W. Jason Fisher, Targeted Killing, Norms, and International Law
• Darren Rosenblum, Internalizing Gender: Why International Law Theory Should Adopt Comparative Methods

NY Times on Taylor Trial

In today's New York Times, reporter Marlise Simons writes about the delays in Charles Taylor trial at the Special Court for Sierra Leone (sitting in The Hague). A taste:

When Charles Taylor, the former president of Liberia, was arrested 17 months ago on war crimes charges and ordered to face international judges, it was heralded as a milestone for justice in Africa. His trial, the first war crimes trial for an African president, was to start in April. But having barely begun, the case has already lost its momentum. Last Monday, hearings were postponed for the fourth time this year, and the court is now set to reconvene in January.

New Issue: International Review of the Red Cross

The latest issue of the International Review of the Red Cross (Vol. 89, no. 865, March 2007) is out. The theme is Humanitarian Actors. Contents include:

• Interview with Ms Fatima Gailani, President of the Afghan Red Crescent Society
• Philippe Ryfman, Non-governmental organizations: An indispensable player of humanitarian aid
• Daniel Thürer, Dunant's pyramid: Thoughts on the "humanitarian space"
• David P. Forsythe, The ICRC: A unique humanitarian protagonist
• Brigitte Troyon & Daniel Palmieri, The ICRC delegate: An exceptional humanitarian player?
• Kate Mackintosh, Beyond the Red Cross: The protection of independent humanitarian organizations and their staff in international humanitarian law
• Aurélio Viotti, In search of symbiosis: The Security Council in the humanitarian domain