Hearings: Law of the Sea Convention

As anticipated, the Senate Foreign Relations Committee has scheduled a hearing on the Law of the Sea Convention for Thursday, September 27. The witnesses will be Deputy Secretary of State John D. Negroponte, Deputy Secretary of Defense Gordon England, and Vice Chief of Naval Operations Admiral Patrick M. Walsh. The Committee's announcement also notes that an "additional hearing on the Convention will be held in October with non-governmental witnesses, at which time proponents and opponents, as well as ocean industry representatives, will be invited to testify."

WTO: Nominations for Appellate Body Membership

The deadline for the receipt of nominations for four positions on the WTO's Appellate Body (AB) was August 31. A WTO news item noted that nominations were submitted by Benin, China, Japan, Korea, Pakistan, and the Philippines for the positions currently held by Egyptian (Georges Abi-Saab), Indian (A.V. Ganesan), Japanese (Yasuhei Taniguchi), and U.S. (Merit Janow) nationals. The absence of a U.S. nomination was odd, as a U.S. national has always been a member of the AB. (Egypt and Japan have also had continuous representation on the seven-member AB since its inception in 1995.) Simon Lester, at the International Economic Law and Policy Blog, quite rightly registered his surprise that the United States would voluntarily concede the seat. A subsequent comment on Lester's post by David Palmeter provided an explanation: the United States nominated two individuals (Jane Bradley and Jennifer Hillman, both former officials at the Office of the United States Trade Representative), but did so after the close of business on the 31st, by which time the WTO news item had already been released. Reportedly, China also submitted two nominations: Zhang Yuejiao (a law professor and former government official who was also nominated for an earlier opening) and Zhang Yuqing (an attorney and former government official). Japan has nominated Shotaro Oshima, its former ambassador and permanent representative to the international organizations in Geneva.

In accordance with a decision of the Dispute Settlement Body (DSB) at its June 20th meeting, all the candidates will be interviewed by a selection committee (made up of the WTO Director-General, and the Chairpersons of the General Council, the Goods Council, the Services Council, the TRIPS Council and the DSB), which will put forward four names for approval by the DSB at its November 19th meeting. Article 17.3 of the Dispute Settlement Understanding states: "The Appellate Body shall comprise persons of recognized authority, with demonstrated expertise in law, international trade and the subject matter of the covered agreements generally. They shall be unaffiliated with any government. The Appellate Body membership shall be broadly representative of membership in the WTO." It is likely that a U.S. national will again serve on the AB.

ICTY/ICTR: Del Ponte's Term Extended, Jallow Reappointed

By a resolution passed today, the Security Council extended ICTY Prosecutor Carla Del Ponte's appointment through the end of the year. Her term was previously scheduled to end on September 15. As previously reported, Serge Brammertz, a Belgian national who leads the United Nations International Independent Investigation Commission (the Hariri inquiry) and was, until his resignation in June, the Deputy Prosecutor for Investigations of the International Criminal Court, is slated to replace Del Ponte once his work with the Commission is completed later this year. Brammertz's appointment, which requires Security Council authorization, has not yet been made official though. Today, as well, the Council, in a separate resolution, reappointed Hassan Bubacar Jallow, prosecutor of the International Criminal Tribunal for Rwanda, for a four-year term.

Bhagwati & Hufbauer Discuss Regional Trade Agreements

Jagdish Bhagwati (Columbia Univ. - Law) and Gary Hufbauer (Peterson Institute for International Economics) discuss whether regional trade agreements are "stepping stones or obstacles" to the multilateral trading system in this recent WTO video.

Avi-Yonah: International Tax as International Law

Reuven Avi-Yonah (Univ. of Michigan - Law) has published International Tax as International Law: An Analysis of the International Tax Regime (Cambridge Univ. Press 2007). Here's the abstract:

This book explains how the tax rules of the various countries in the world interact with one another to form an international tax regime: a set of principles embodied in both domestic legislation and treaties that significantly limits the ability of countries to choose any tax rules they please. The growth of this international tax regime is an important part of the phenomenon of globalization, and the book delves into how tax revenues are divided among different countries. It also explains how U.S. tax rules in particular apply to cross-border transactions and how they embody the norms of the international tax regime.

Gottschalk, et al.: Conflict of Laws in a Globalized World

Eckart Gottschalk (Harvard - Law), Ralf Michaels (Duke Univ. - Law), Giesela Ruhl (Max Planck Institute for Foreign Private and Private International Law, Hamburg), & Jan von Hein (Max Planck Institute for Foreign Private and Private International Law, Hamburg) have published Conflict of Laws in a Globalized World (Cambridge Univ. Press 2007). Contents include:

• Jürgen Basedow, The last Euro-American legal scholar? Arthur Taylor von Mehren (1922-2006)
• Peter L. Murray, Arthur Taylor von Mehren and the Joseph Story Research Fellowship
• Michael von Hinden, Building bridges between legal systems - the life and work of Arthur T. von Mehren
• Ralf Michaels, Some fundamental jurisdictional conceptions as applied in judgement conventions
• Christian Thiele, The Hague Convention on Choice-of-Court Agreements - was it worth the effort?
• Martin Gebauer, Lis Pendens, negative declaratory-judgement actions and the first-in-time principle
• Jan von Hein, Recent German jurisprudence on cooperation with the US in civil and commercial matters: a defense of sovereignty or judicial protectionism?
• Moritz Balz & Feliz Blobel, Collective litigation German style - the act on model proceedings in capital market disputes
• Gisela Ruhl, Party autonomy in the private international law of contracts: transatlantic convergence and economic efficiency
• Eckart Gottschalk, The law applicable to intellectual property rights: is the Lex Loci Protectionis a pertinent choice of law approach?
• Dietmar Baetge, The extraterritorial reach of antitrust law between legal imperialism and harmonious co-existence: the empagram judgement of the US Supreme Court from a European perpective
• Matthias Weller, Mandatory elements of the Choice-of-Law Process in international arbitration - some reflections on Teubnerian and Kelsenian legal theory
• Oliver Furtak, Application of foreign law to determine punitive damages- a recent US Court contribution to Choice-of-Law evolution

ICC: Annual Report to the United Nations

The International Criminal Court has posted its Annual Report to the United Nations for 2006-2007.

Dunoff: The Many Dimensions of Softwood Lumber

Jeffrey L. Dunoff (Temple Univ. - Law) has posted The Many Dimensions of Softwood Lumber (Alberta Law Review, forthcoming). Here's the abstract:

The Softwood Lumber dispute between the U.S. and Canada is one of the longest and most expensive trade disputes in history. However, the Softwood Lumber dispute has been, if not misunderstood, at least underappreciated. To date, the dispute has attracted attention because of the substantial economic interests involved, the complexity ands length of the litigation, and the doctrinal implications of the various decisions rendered in domestic and international proceedings. This paper seeks to demonstrate that Softwood Lumber's central importance lies elsewhere; for trade scholars, Softwood Lumber is of interest because it exposes three of the central challenges facing the international trade regime: the potential displacement of an international regime by a spaghetti bowl of regional and bilateral treaties; the status of international trade norms in domestic courts; and the problem of selective and halting compliance by powerful states. But these challenges are, in turn, instantiations of three central challenges facing the field of public international law, namely the fragmentation of international law; the relationships among proliferating transnational courts; and the limits of (international) legalization. Thus, the systemic issues raised by Softwood Lumber provide a tour d'horizon of debates central to contemporary international trade law and public international law.

Scharf: Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible?

Michael Scharf (Case Western Reserve Univ. - Law) has posted Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible? (Washington & Lee Law Review, forthcoming). Here's the abstract:

Written by a consultant to the United Nations' newly established Cambodia Genocide Tribunal, "Tainted Provenance" examines one of the most important legal questions that will face the Tribunal as it begins its trials next year - whether evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Tuol Sleng torture facility should be considered notwithstanding the international exclusionary rule for evidence procured by torture. The issue of whether there should be exceptions to the torture evidence exclusionary rule (and how those exceptions should be crafted to avoid abuse) has significant implications beyond the international tribunal, in particular with respect to the admissibility of statements obtained by torture in cases before military commissions and federal courts in the United States and across the globe. The article analyzes and critiques three possible exceptions to the torture evidence exclusionary rule: (1) that the exclusionary rule should not apply to evidence resulting from preliminary questioning before the application of actual; (2) that the exclusionary rule should not apply to evidence obtained by third-party authorities; and (3) that the exclusionary rule should not apply to evidence used against the leaders of the regime who were ultimately responsible for the acts of torture. To avoid pernicious use of these exceptions and to ensure that they are not applied in a manner that will undermine the purposes of the Torture Convention in future cases, the author proposes and discusses four criteria that should be satisfied before a court can consider evidence that was obtained by torture or cruel, inhuman or degrading methods of interrogation: (1) evidence obtained by torture or cruel, inhuman and degrading means must never be used in a trial where the victim of such abuse is the defendant; (2) such evidence must never be used where the prosecuting authorities were directly or indirectly involved in the acts of ill-treatment; (3) evidence obtained through the use of such ill-treatment must not be considered unless it meets a high level of corroboration; and (4) evidence derived from torture or cruel, inhuman or degrading treatment should not be admitted if, with reasonable efforts, the prosecution could obtain non-tainted evidence that would be effective in establishing criminal liability. Finally, drawing by analogy from the debate concerning citations to unethically obtained medical data, the author suggests that if a tribunal or court were to admit evidence in a case that meets these criteria, it should specifically acknowledge that the evidence was obtained through torture or cruel, inhuman or degrading treatment, and would ordinarily have been excluded because of concerns about reliability, deterrence, and defiling the administration of justice.

Hakimi: International Standards for Detaining Terrorism Suspects

Monica Hakimi (Yeshiva Univ. - Benjamin N. Cardozo School of Law) has posted International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide. Here's the abstract:

Under what circumstances does international law permit a state to detain terrorism suspects not captured in a theater of combat? There continues to be confusion on this question, but two dominant strands of thought have emerged. One asserts that the law of armed conflict applies to permit extended detention with minimal or no legal process; the other claims that human rights law applies to prohibit detention unless accompanied by the ordinary criminal process. Neither strand fully tracks international practice. Rather than uniformly adopting one system or the other - armed conflict or criminal - international actors have been groping toward an in-between, hybrid system. Based on a review of that practice, this Article argues that the global fight against terrorism is best not characterized as an armed conflict for purposes of application of a detention regime under the law of armed conflict, but that the reflexive rejoinder - if the law of armed conflict does not apply, then the criminal law must - is mistaken. Although the criminal law is an important tool for detaining terrorism suspects, human rights law also permits states to detain them administratively. Moreover, administrative detention may strike a more appropriate balance between liberty and security in the context of particular terrorism suspects. Yet the legal contours of security-based administrative detention are underdeveloped in international law. This Article thus begins the project of refining the law of administrative detention as it applies in the fight against terrorism. The purpose of this project is twofold: to inhibit states from exploiting the current legal ambiguity to detain unnecessarily or without constraints; and to enable states to detain based on a lawful template, thereby reducing the incentive to resort to unchecked or unpalatable measures.

SFRC: Treaties Favorably Reported

Yesterday, September 11, the Senate Foreign Relations Committee ordered favorably reported the following treaties:

• The Patent Law Treaty and Regulations Under the Patent Law Treaty, done at Geneva on June 1, 2000, between the Governments of 53 countries including the United States of America (Treaty Doc. 109-12), with one reservation;
• The Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs, adopted in Geneva on July 2, 1999, and signed by the United States on July 6, 1999 (Treaty Doc. 109-21), with nine declarations;
• The Singapore Treaty on the Law of Trademarks (Treaty Doc. 110-2), with one condition; and
• The Protocol to the 1951 Treaty of Friendship, Commerce, and Navigation between the United States and Denmark (Treaty Doc. 108-8).

Workshops: Janis, Karol, Osofsky

Mark Janis (Univ. of Connecticut - Law) will give a talk today at the University of Connecticut School of Law's faculty workshop on "International Law Stories: Mr. Justice Holmes: Birds, Wars & Race."

Thomas Karol (Office of the U.S. Attorney for the Northern District of Ohio) will give a talk today at the University of Toledo College of Law on "The Prosecution of Saddam Hussein’s Regime."

Hari Osofsky (Univ. of Oregon - Law) will give a talk today at the University of Oregon School of Law's Environmental and Natural Resources Law Program workshop on "Climate Change and the Alien Tort Claims Act."

Thanks to the Legal Scholarship Blog for compiling information on workshops.

Conference: International Law and the Constitution

Fordham Law School is hosting a symposium on International Law and the Constitution: Terms of Engagement, October 4-5, 2007, in New York City. The program is not yet available online. Speakers include: Cathy Albisa, Roger Alford, Ajamu Baraka, Marea Beeman, Ann Beeson, Grainne de Burca, Sarah Cleveland, Martha Davis, Laura Dickinson, Toni Fine, Martin Flaherty, Oona Hathaway, Tracy Higgins, Scott Horton, Robert Howse, Margaret Huang, Alan Jenkins, Derek Jinks, Julian Ku, Lenora Lapidus, Thomas Lee, John McGinnis, Alison Parker, Catherine Powell, Mark Shulman, Cindy Soohoo, William Treanor, and Matthew Waxman. Here are the session topics:

• The Contemporary Relevance of International Human Rights for Constitutional Law and Social Justice: Case Studies and Limitations
• Ensuring U.S. Compliance with Human Rights through the U.N. Treaty Body System
• The Role of International Bodies in Influencing U.S. Policy
• The Application of International Law to the Treatment of Detainees in the President's "War on Terror"
• What Does International Rule of Law Mean for the United States: Competing Perspectives
• Debate: The Legitimacy of Delegating Lawmaking to International Institutions - The International Court of Justice and Foreign Nationals on Death Row in the U.S.
• International and Foreign Law Sources in Interpreting the Constitution

Workshop: Baylis on Congolese Military Courts and the International Criminal Court Statute

Elena Baylis (Univ. of Pittsburgh - Law) will give a talk today at the University of Pittsburgh School of Law's Faculty Workshop on "Early Adopters: Congolese Military Courts and the International Criminal Court Statute."

Scheffer, Cooper, & Kohler: The End of Exceptionalism in War Crimes

David Scheffer (Northwestern - Law), Richard Cooper (Responsibility to Protect Coalition), & Juliette Voinov Kohler (formerly, Responsibility to Protect Coalition) have posted The End of Exceptionalism in War Crimes: The International Criminal Court and America’s Credibility in the World (Harvard International Review, web exclusive). Here's the introductory paragraph:

US exceptionalism may have a place in international politics, but this concept has run its course in the sphere of international criminal justice. No nation should ignore its duty to bring war criminals to justice or otherwise shield its own leaders or soldiers from charges of genocide, crimes against humanity, or war crimes. The rule of law debacles in Iraq, Afghanistan, and Guantanamo have been the death-knell of exceptionalism in the war crimes business. Reality is knocking and its name is the permanent International Criminal Court (ICC). Any claim that the US may have to moral high ground in foreign policy necessarily requires that the United States join the ICC and do so relatively soon. The United States needs the ICC to help restore its global credibility, discipline its own decision-making, and strengthen judicial intervention against atrocity crimes.

Update: Sixth Committee of the UN General Assembly

A new session of the UN General Assembly - its sixty-second - begins next Tuesday, September 18. The Sixth Committee (Legal) will convene nearly three weeks later, on Monday, October 8. The Committee's revised provisional programme of work (A/61/458/Add.1) and other documents can be found, for now, here. In addition to the annual reports of the International Law Commission and the UNCITRAL, there are a number of topics of interest on the agenda, including the final form (treaty, General Assembly endorsement, etc.) for the ILC's draft articles on State responsibility, draft articles on diplomatic protection, and draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities. Comments received from governments on these subjects can be found in documents A/62/63 and Add.1 (State responsibility) and A/62/118 and Add.1 (diplomatic protection). As is customary, the President of the International Court of Justice will visit the Committee - this year on Friday, November 2. The meeting of Legal Advisers will take place Monday, October 29, and Tuesday, October 30.

New Issue: Lloyd's Maritime and Commercial Law Quarterly

The latest issue of Lloyd's Maritime and Commercial Law Quarterly (Vol. 2007, pt. 2, May 2007) is out. Contents include:

• E.P. Effinger, The Uniform Customs and Practice for Documentary Credits (UCP): Their development and the current revisions
• F.D. Rose, Informational asymmetry and the myth of good faith: Back to basis
• Elise Bant, Payment over and change of position: Lessons from agency law
• Harry McVea & Peter Cumper, The financial ombudsman service and disputes involving "wider implications" issues

New Issue: World Trade Review

The latest issue of the World Trade Review (Vol. 6, no. 2, July 2007) is out. Contents include:

• Martin Roy, Juan Marchetti, & Hoe Lim, Services liberalization in the new generation of preferential trade agreements (PTAs): How much further than the GATS?
• Stephen Tokarick, How large is the bias against exports from import tariffs?
• Special GMO Symposium
• Tomer Broude, Genetically modified rules: the awkward rule–exception–right distinction in EC–Biotech
• Christiane R. Conrad, The EC–Biotech dispute and applicability of the SPS Agreement: Are the panel's findings built on shaky ground?
• Gareth Davies, Morality clauses and decision making in situations of scientific uncertainty: The case of GMOs
• Oren Perez, Anomalies at the precautionary kingdom: Reflections on the GMO Panel's decision
• Mary E. Footer, Post-normal science in the multilateral trading system: Social science expertise and the EC–Biotech Panel
• Snipings
• Jagdish Bhagwati & Petros C. Mavroidis, Is action against US exports for failure to sign Kyoto Protocol WTO-legal?