Saturday, September 29, 2007

Nicholls, Montgomery, & Knowles: The Law of Extradition and Mutual Assistance

Clive Nicholls (Three Raymond Buildings), Clare Montgomery (Matrix Chambers), & Julian B. Knowles (Matrix Chambers) have published the second edition of The Law of Extradition and Mutual Assistance (Oxford Univ. Press 2007). Here's the abstract:
The Law of Extradition and Mutual Assistance provides a comprehensive and authoritative treatment of the laws covering the extradition arrangements between the UK and other states, as well as international mutual assistance. Since the first edition was published by Cameron May in 2002, the Extradition Act 1989 and the Criminal Justice (International Co-operation) Act 1990 have been repealed and replaced by the Extradition Act 2003 and the Crime (International Co-operation) Act 2003, respectively, and international confiscation is now dealt with under the Proceeds of Crime Act 2002. This second edition has therefore been scrupulously updated and rewritten to take into account all of the legislative changes, and offers a detailed treatment and practical guidance to the new legislation. This new edition has also been expanded to provide comparative coverage on extradition law and practice in other jurisdictions, including the US, Canada, and Australia, and includes a chapter on how the European Arrest Warrant is dealt with in other EU countries.

Fox: Internationalizing National Politics: Lessons for International Organizations

Gregory H. Fox (Wayne State Univ. - Law) has posted Internationalizing National Politics: Lessons for International Organizations (Widener Law Review, forthcoming). Here's the abstract:

Much recent scholarship has critiqued the “undemocratic” nature of international organizations (IOs). Legitimate political authority, it is argued, requires a popular mandate. IOs, which exercise increasingly broad powers over a diverse set of policy objectives, derive their authority instead from the consent of their member states. Democratic theory would view this authority as suspect for multiple reasons: individuals have no role in granting consent; more powerful states have privileged positions within IOs (such as veto power on the UN Security Council), thus further diminishing the role of individuals in less powerful states; and consent is usually given in treaties, which are quite difficult to renounce via the normal mechanisms of democratic politics. Building on these critiques, some scholars have issued proposals to “democratize” IOs, either by allowing popular access to existing organizations or by creating new organizations, such as a “Peoples' Assembly,” dedicated specifically to injecting popular views into international discourse.This article asks whether the international community's prior experience with democracy promotion holds any lessons for these proposals. A wide range of norms and institutions now promotes democratic reforms within states. And democratic states are increasingly privileged in their international relations.

This article argues that while this state-level experience introduced democratic principles into international law, and was therefore an essential foundation for the current debate over IOs, it nonetheless bodes ill for the IO claims. First, national democracy promotion has been directed overwhelmingly toward developing countries of the global south. Efforts to democratize IOs, however, will encounter organizations dominated by powerful developed states. Second, the normative commitment to democracy that underlies most of the efforts at state-level reform is simply not present for international organizations. This normative gap undoubtedly reflects a lack of political theory arguments explaining why popular input into IOs is necessary to their legitimacy.

Finally, the nature of the “community” to be democratized is much less clear than in the case of national politics. The constituent public of a state government is its citizens, and democratic theory provides principles of legitimacy, now arguably embedded in international law, that link policy-making to popular consent. The constituent public of an international organization, on the other hand, is its member states. The law of international institutions, both generally and the specific constitutional law of each individual organization, provides a series of mechanisms by which member states may hold the organization accountable. To argue that international organizations ought to be “accountable,” therefore, begs the question, “accountable to whom?”

Bjorklund: Private Rights and Public International Law: Why Competition Among International Economic Law Tribunals is Not Working

Andrea K. Bjorklund (Univ. of California, Davis - Law) has posted Private Rights and Public International Law: Why Competition Among International Economic Law Tribunals is Not Working (Hastings Law Journal, forthcoming). Here's the abstract:
It is a buyer's market for foreign investors seeking remedies for wrongs they have allegedly suffered at the hands of host governments. They can usually seek relief in the courts of the host state, but, increasingly, they also have more cosmopolitan options to consider, including investor-state arbitration based on violations of one or more investment treaties. This competition for business is not, contrary to expectation, advantageous to investors or the world community. First, competition is to some extent illusory: available remedies and jurisdictional authority are often so fragmented among tribunals that a claimant must seek relief in multiple fora in order to be made whole. Second, the possibility of bringing duplicative cases brings disrepute to international dispute settlement mechanisms without corresponding advantages in innovation, quality, or efficient allocation of resources. These problems are exacerbated by the fact that tribunals lack the means (such as the traditional conflict of laws analysis used by municipal courts) to coordinate proceedings when their jurisdictions overlap with those of other tribunals. This incapacity will persist until public international law principles adapt to reflect a pluralistic legal order. Achieving more coordination among tribunals requires revisiting the historic division between states and individuals in international law. Individuals will need to have recognized status and be treated as third-party beneficiaries of such treaties, rather than as owners of derivative rights, to effect this change. Such theoretical advances will permit a desirable coordination, and ultimately a harmonization of effort, among tribunals in the international economic law sphere and beyond.

Gelpern: Domestic Bonds, Credit Derivatives, and the Next Transformation of Sovereign Debt

Anna Gelpern (Rutgers Univ., Newark - Law) has posted Domestic Bonds, Credit Derivatives, and the Next Transformation of Sovereign Debt (Chicago-Kent Law Review, forthcoming). Here's the abstract:

The emerging market financial markets are experiencing a fundamental shift. Between 1995 and 2005, domestic debt in poor and middle-income countries grew from $1 trillion to $4 trillion, with most of the growth in public sector borrowing. In Mexico, domestic government debt went from just over 20% of the total debt stock in 1995 to nearly 80% in 2007. Over roughly the same period, credit default swap contracts referencing emerging market entities (most of them sovereign) grew from zero to $300 billion in notional amount outstanding, surpassing market capitalization of the leading emerging market debt index and projected to double annually. The growth of domestic bonds and credit derivatives makes the emerging markets look more "mature", or mainstream. But a closer look at recent changes suggests that the rhetoric of mainstreaming and convergence may obscure more than it reveals. Emerging and mainstream markets use formally identical instruments, yet this formal resemblance need not stand for substantive identity. Nor does the overlap between emerging and mainstream market participants reflect the rise of a single market. Instead, investors use the same instruments differently in different markets, which, as the examples in the text suggest, can be its own source of risk.

This paper focuses on the implications of recent changes for studying emerging market sovereign debt. For more than a decade, writing about this debt meant writing about the shift from bank loans in the 1970s to bonds in the 1990s, and the attendant collective action problems. The contracts at the center of this literature were denominated in foreign currency, governed by New York or English law; the creditors were foreign residents. Law scholarship has yet to engage with the shift from foreign-law, foreign-currency to local-law, local-currency bonds, where the creditors are diverse and churn constantly. The goal of this paper is to map the ongoing transformation in a way that highlights gaps between formal and substantive convergence of emerging and mainstream markets, and suggests directions for future research.

Friday, September 28, 2007

IMF: Strauss-Kahn Selected as New IMF Managing Director

As widely anticipated, Dominique Strauss-Kahn was selected today as the new Managing Director of the International Monetary Fund. The IMF press release is here; Strauss-Kahn's statement upon being selected is here. Here's the IMF news story:

Former French finance minister Dominique Strauss-Kahn was selected September 28 as the new Managing Director of the IMF. The IMF's Executive Board said it selected Strauss-Kahn, 58, by consensus to succeed Rodrigo de Rato for a five-year term beginning November 1. The IMF Board considered two candidates for the post after de Rato's June 28 announcement that he intended to leave the institution in October. Strauss-Kahn, a French national, was nominated by IMF Executive Director for Germany Klaus Stein on behalf of the European Union. Josef Tosovsky, a Czech national and former Czech prime minister and central bank governor, was nominated by Executive Director for Russia Aleksei Mozhin. The Managing Director is the chief of the IMF's operating staff and Chairman of the Executive Board. He is assisted by three Deputy Managing Directors. In a statement following the IMF announcement, Strauss-Kahn said he was "determined to pursue without delay the reforms needed for the IMF to make financial stability serve the international community, while fostering growth and employment." De Rato welcomed Strauss-Kahn's selection, noting in a statement that he had known and worked with Strauss-Kahn for many years. "I know he possesses the experience, vision, and dedication to public service needed to successfully lead the IMF at this important juncture," de Rato said. He also expressed appreciation to the Executive Board for having conducted the selection "through a transparent and competitive process." Tosovsky and Strauss-Kahn were interviewed by the IMF Board in Washington in September. In his September 20 statement to the Board, Strauss-Kahn said the IMF was at a crossroads. Its very existence as the major institution providing financial stability to the world might be at stake, and rebuilding its relevance and legitimacy would be a hard task.
Concept of security Strauss-Kahn told the IMF Board that financial stability and macroeconomic stability are closely interlinked, as they also are a key determinant of the broad concept of security. "All of this means that the IMF should retain a central role in a context that is completely different from the one which prevailed when it was created," he stated. Following his July adoption as the EU's candidate to head the IMF, Strauss-Kahn embarked on a world tour to, as he said in his statement to the IMF Board, visit as many IMF members as possible. "I tried to focus on emerging, developing, and less developed countries in order to collect information, complaints, and wishes about the future of the IMF," he told the Board. Strauss-Kahn visited countries in Africa, Asia, Latin America, and the Middle East. In a Wall Street Journal op-ed on September 6, Strauss Kahn said: "As the candidate of reform, I would aim to steer the IMF on a path to confront and surmount its major challenges: adapting the institution to a changing world while reflecting the views and needs of all members." He added he was confident that, if appointed, he would "find the necessary support to implement an ambitious reform program to ensure the enduring relevance of the IMF in a rapidly changing world economy."

Annual Report of the ILC

The Report of the International Law Commission on its fifty-ninth session (A/62/10) is now available. Topics considered during the session included: shared natural resources; responsibility of international organizations; reservations to treaties; effects of armed conflicts on treaties; the obligation to extradite or prosecute (aut dedere aut judicare); and expulsion of aliens. In addition to the texts of various drafts articles, draft guidelines, and draft commentaries, as well as summaries of the debate, the Report, among other things, requests comments on specific issues, pertaining to certain topics under consideration, that would be of particular interest to the Commission. The Report also notes that the Commission decided to include two new topics on its program of work - "protection of persons in the event of disasters" and "immunity of State officials from foreign criminal jurisdiction" - and appointed special rapporteurs for each.

Workshop: Lee on "Theorizing the Foreign Affairs Constitution"

Thomas H. Lee (Fordham Univ. - Law) will give a talk today at the University of Texas School of Law's Faculty Colloquium on "Theorizing the Foreign Affairs Constitution."

Newton: Modern Military Necessity: The Role & Relevance of Military Lawyers

Michael A. Newton (Vanderbilt Univ. - Law) has posted Modern Military Necessity: The Role & Relevance of Military Lawyers (Roger Williams University Law Review, forthcoming). Here's the abstract:

Modern warfare presents an array of legalistic overtones that require the presence and participation of attorneys of exceptional courage and breadth of expertise in demanding and austere conditions. Military lawyers today must confront complex missions and competing operational demands in representing the needs of operational commanders. The legal dimension of conflict has at times overshadowed the armed struggle between adversaries as the nature of conflict itself has changed. The overall mission will often be intertwined with political, legal, and strategic imperatives that cannot accomplished in a legal vacuum or by undermining the threads of legality that bind diverse aspects of a complex operation together. The newly promulgated United States doctrine for counterinsurgency operations makes this clear in its opening section. Insurgency and counterinsurgency (COIN) are complex subsets of warfare. Globalization, technological advancement, urbanization, and extremists who conduct suicide attacks for their cause have certainly influenced contemporary conflict; however, warfare in the 21st century retains many of the characteristics it has exhibited since ancient times. Warfare remains a violent clash of interests between organized groups characterized by the use of force. Achieving victory still depends on a group's ability to mobilize support for its political interests (often religiously or ethnically based) and to generate enough violence to achieve political consequences. Means to achieve these goals are not limited to conventional forces employed by nation-states. Even in light of the nonnegotiable necessity for accomplishing the mission and the culture that correspondingly prizes the selfless pursuit of duty, lawyers have a vital role that supports rather than impedes the effort to create and sustain combat ready forces.

This Article will address the range of responsibilities incumbent on lawyers in the military and their necessity to the functioning of the military. Though the phrase is most commonly associated with the jus in bello principle that governs the conduct of conflict, Part II addresses lawyers as a military necessity. Military legal expertise provides an irreplaceable source of guidance and insight to military commanders during times of armed conflict. Part III addresses the law of lawyers regarding the implementation of humanitarian law along with the military lawyer's challenge in making legal aspects integral to the actions of military commanders. In Part IV, the continued necessity of military lawyers is discussed due to the military lawyer's ongoing roles as trainers, negotiators, enforcers and reporters.

Thursday, September 27, 2007

SFRC: Law of the Sea Convention, Second Hearing Scheduled

The Senate Foreign Relations Committee announced today that it would hold its promised second hearing on the Law of the Sea Convention in a week, on Thursday, October 4. There will be two panels: the first will include Admiral Vern Clark (Retired, Former Chief of Naval Operations), Professor Bernard H. Oxman (Univ. of Miami School of Law), Frank J. Gaffney, Jr (President, Center for Security Policy), and Fred L. Smith, Jr. (President, Competitive Enterprise Institute); the second will include Paul C. Kelly (President, Gulf of Mexico Foundation), Joseph J. Cox (President, Chamber of Shipping of America), and Douglas R. Burnett (Holland & Knight, LLP).

SFRC: Law of the Sea Convention, Hearing Testimony

Today, the Senate Foreign Relations Committee held a hearing on the UN Convention on the Law of the Sea. The prepared remarks of the three witnesses are now available here (Deputy Secretary Negroponte), here (Deputy Secretary England), and here (Admiral Walsh).

ICTY: Trial Chamber Judgment in Case Against Mrkšić, Radić, and Šljivančanin

Today, the ICTY Trial Chamber rendered its judgment in the case (No. IT-95-13/1) against Mile Mrkšić, Miroslav Radić, and Veselin Šljivančanin, former military commanders in the Yugoslav People’s Army (JNA). The defendants were indicted, under theories of individual and superior responsibility, for crimes against humanity and war crimes, including persecutions, extermination, murder, torture, inhumane acts, and cruel treatment, allegedly committed after the fall of the Croatian city of Vukovar in November 1991. Specifically, the indictment, as summarized by the ICTY, alleged that:

in late August 1991, the Yugoslav People's Army (JNA) laid siege to the city of Vukovar. The siege continued until 18 November 1991 when the city fell to Serb forces. During the course of the three-month siege, the city was largely destroyed by JNA shelling and hundreds of persons were killed. After Serb forces occupied the city, the hundreds more non-Serbs were killed by Serb forces. The overwhelming majority of the remaining non-Serb population of the city was expelled within days of the fall of Vukovar. In the last days of the siege, several hundred people sought refuge at the Vukovar Hospital in the hope that it would be evacuated in the presence of international observers. According to the indictment, Mile Mrkšić, Miroslav Radić and Veselin Šljivančanin participated in a joint criminal enterprise (JCE). The purpose of the JCE was the persecution of Croats or other non-Serbs who were present at Vukovar Hospital after the fall of the city, through the commission of murder, torture, cruel treatment, extermination and inhumane acts. It is further alleged that on 20 November 1991, JNA soldiers removed about 400 non-Serbs from the Vukovar Hospital. Miroslav Radić and Veselin Šljivančanin personally participated in the selection of detainees who were to be loaded on buses. The buses left the hospital and proceeded to the JNA barracks where Serb forces comprised of the Territorial Defence (“TO”), volunteer and paramilitary soldiers humiliated and threatened detainees. Some detainees were removed from the buses and beaten in the presence of members of the JNA. The detainees were then transported to a farm building in Ovčara, located about 4 kilometers south of Vukovar, where soldiers beat them. Soldiers then transported their non-Serb captives in groups of about 10 to 20 to a ravine in the direction of Grabovo, a village about 3 km south-east of Ovčara, where they killed at least 264 Croats and other non-Serbs from Vukovar Hospital. After the killings, the bodies of the victims were buried by bulldozer in a mass grave at the same location.

In today's judgment (not yet available online; press release here), the Trial Chamber convicted Mrkšić of war crimes, specifically aiding and abetting the murder, torture, and cruel treatment of 194 non-Serb prisoners of war who were taken from Vukovar Hospital. He was sentenced to twenty years imprisonment. The Chamber convicted Šljivančanin of war crimes, namely aiding and abetting the cruel treatment of the prisoners. He was sentenced to five years imprisonment. The Chamber acquitted Radić of all charges. The crimes against humanity charges brought against all three defendants were dismissed because the persons murdered had been "specifically identified and selected because of their known, or believed, involvement in the Croatian forces in Vukovar. The Serb forces who mistreated the victims and murdered them acted on the understanding that the victims were prisoners of war, not civilians."

Call for Papers: Complementing IHL: Exploring the Need for Additional Norms to Govern Contemporary Conflict Situations

The Minerva Center for Human Rights at the Hebrew University of Jerusalem and the Tel Aviv Delegation of the International Committee of the Red Cross (ICRC) are organizing an international conference on "Complementing IHL: Exploring the Need for Additional Norms to Govern Contemporary Conflict Situations," which will take place June 1-3, 2008, in Jerusalem. The conference "seeks to examine if, how and to what extent the regulation of certain contemporary conflict situations could be improved - whether by the development or reinterpretation of international humanitarian law (IHL) or by the introduction of complementary norms derived from alternative legal sources." The conference organizers provide the following additional background and submission instructions:

The application of the laws of armed conflict, including the laws of occupation, has traditionally depended on the fulfillment of threshold conditions or triggering mechanisms. Accordingly, invocation of the law governing international armed conflict situations turns on the actual existence of state-controlled violence across international borders; the application of the law governing non-international armed conflict situations depends on the existence of prolonged and/or high intensity violence between organized groups (at least one of which is not a state); and the law of occupation hinges on the factual existence of effective control by armed forces over alien territory.

Recent conflict situations, such as those in Gaza, Lebanon, Iraq, Afghanistan, Somalia and Kosovo, have arguably entailed major factual complications and ambiguities that seem to raise difficult questions regarding their legal qualification: they involve multi-national armed operations; cross-border or low-level violence involving non-state entities; or hostile military presence in foreign territory without full control. This gives rise to the question of whether an amendment or reinterpretation of the threshold provisions contained within IHL could enhance protection of humanitarian interests implicated in these conflicts.

It has also been argued that such conflicts, in particular as they involve non-state actors and/or international organizations, are under-regulated and that additional normative sources may contribute to complement IHL in such contexts.

Although some experts believe that human rights law may supplement IHL in many of these new conflict situations, human rights law may suffer from the same structural predicaments that may constrain the application of IHL. As the European Court of Human Rights decisions in Bankovic and Behrami and the House of Lord's judgment in Al-Skeini demonstrate, the application of human rights law too is contingent on conditions for application or on triggering circumstances, which may be no less rigid than those governing the application of IHL. Hence, the conference proposes to examine the need for reform of these triggering provisions and the appropriateness of invoking additional norms coming from other areas of international law.

The conference aims to critically examine the adaptability of IHL to what might be regarded as new conflict situations and to try to identify potential areas of under-regulation - conflict situations that may be inadequately regulated by IHL. The conference will then explore the potential of developing or reinterpreting IHL or locating non-IHL normative sources, which may apply to those potential areas of under-regulation or inspire the creation of new bodies of law. Such alternative sources may include or relate to human rights law (perhaps subject to more flexible conditions for application), but they might also include the laws of state responsibility and general principles of law, such as the principle of good neighbourliness and the prohibition against abuse of right. Other legal regimes governing activities with cross-border effects, such as international environmental law and international economic law, may serve as a source of inspiration for developing such general principles.

The conference seeks to study the potential for developing or reinterpreting IHL, as well as other legal regimes that could possibly complement IHL and apply to new conflict situations, in ways that are conducive to the attainment of IHL's overriding goals: the mitigation of harm and suffering and the promotion of humanitarian interests, even in times of conflict.


Researchers interested in addressing these questions, or other questions related to the topic of the conference, are invited to respond to this call for papers with a one-page proposal for an article and presentation, along with a brief CV. Proposals should be submitted no later than 1 December 2007, by email, to the Minerva Center for Human Rights at the Hebrew University of Jerusalem. Email:

ICTY: Appeals Chamber Judgment in Case Against Limaj, Musliu, and Bala

Today, the ICTY Appeals Chamber rendered its judgment in the case (No. IT-03-66) against former Kosovo Liberation Army (KLA) officers Fatmir Limaj, Isak Musliu, and Haradin Bala. The Trial Chamber, in a judgment delivered on November 30, 2005 , found Limaj and Musliu not guilty of all charges regarding their alleged involvement in crimes committed at the Llapushnik/Lapušnik prison camp in Kosovo in 1998. The Trial Chamber found Bala, a guard at the camp, guilty of torture, cruel treatment, and murder. He was sentenced to 13 years imprisonment. Both Bala and the Prosecutor appealed that decision. The Prosecutor also appealed the acquittals of Limaj and Musliu.

In today's decision (not yet available online; press release here), the Appeals Chamber dismissed the appeals, confirming the acquittals of Limaj and Musliu and affirming Bala's conviction and sentence. With regard to Limaj, the Appeals Chamber concluded that "the Trial Chamber reasonably found that [he] does not incur criminal responsibility [under a theory of command responsibility] for any of the offences charged in the Indictment." Concerning Musliu, the Appeals Chamber (Judge Schomburg dissenting) concluded that the Trial Chamber's decision "that [he] was not present inside the prison camp and did not participate in the operation of the Lapušnik prison camp" reasonably reflected the evidence. And regarding Bala, the Appeals Chamber rejected his claims of mistaken identity and alibi. The Appeals Chamber also rejected the Prosecutor's contentions that a systemic joint criminal enterprise existed in the prison camp.

Wednesday, September 26, 2007

Cornejo v. County of San Diego

On Monday, a Ninth Circuit panel decided Cornejo v. County of San Diego. The plaintiff sought damages and injunctive relief against the defendants on behalf of a class of foreign nationals who were arrested and detained without being advised of the rights provided for by Article 36 of the Vienna Convention on Consular Relations. The question was "whether Article 36 of the Vienna Convention on Consular Relations creates judicially enforceable rights that may be vindicated in an action brought under 42 U.S.C. § 1983." Judge Rymer, writing for herself and Judge Alarcón, concluded:

. . . Article 36 does not create judicially enforceable rights. Article 36 confers legal rights and obligations on States in order to facilitate and promote consular functions. Consular functions include protecting the interests of detained nationals, and for that purpose detainees have the right (if they want) for the consular post to be notified of their situation. In this sense, detained foreign nationals benefit from Article 36's provisions. But the right to protect nationals belongs to States party to the Convention; no private right is unambiguously conferred on individual detainees such that they may pursue it through § 1983.

Judge Nelson, in dissent, disagreed:

[A] remedy under § 1983 is presumptively available once Cornejo demonstrates that the ratifying Congress of the Vienna Convention had an intent to confer individual rights in Article 36(1)(b). Therefore, I respectfully dissent because it is clear that Article 36(1)(b) does confer individual rights and the presumption of a remedy under § 1983 has not been overcome.

The majority reached the opposite result from that of the Seventh Circuit in Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007), decided in March of this year.

Lew & Mistelis: Arbitration Insights

Julian D.M. Lew (20 Essex Street Barristers) & Loukas A. Mistelis (Queen Mary, University of London - Centre for Commercial Law Studies) have published Arbitration Insights: Twenty Years of the Annual Lecture of the School of International Arbitration (Kluwer Law International 2007). Contents include:
  • Loukas Mistelis, Arbitration Insights: Evolution and Themes
  • Hazel Fox, States and the Undertaking to Arbitrate
  • Giorgio Bernini, The Future of Arbitration: Flexibility or Rigidity?
  • Lord Bingham, The Problem of Delay in Arbitration
  • E. Allan Farnsworth, Punitive Damages in Arbitration
  • Roy Goode, The Adaptation of English Law to International Commercial Arbitration
  • Albert Jan Van Den Berg, The Efficacy of Award in International Commercial Arbitration
  • Lord Steyn, England's Response to the Uncitral Model Law of Arbitration
  • Howard M. Holtzmann, Streamlining Arbitral Proceedings: Some Techniques of the Iran-United States Claims Tribunal
  • Arthur L. Marriott, "Tell it to the Judge - but only if you must"
  • Stephen M. Schwebel, May the Majority vote of an International Arbitral Tribunal be Impeached?
  • Kenneth Rokison, "Pastures New": Review of Arbitration Act 1996
  • Gerold Herrmann, Does the World need Additional Uniform Legislation on Arbitration?
  • V.V. Veeder, Lloyd George, Lenin and Cannibals: The Harriman Arbitration
  • Pierre Mayer, Reflections on the International Arbitrator's Duty to Apply the Law
  • Elihu Lauterpacht, Arbitration between States and Foreign Investors: Retrospect and Prospect
  • William W. Park, Arbitration's Protean Nature: The Value of Rules and the Risk of Discretion
  • Alan Redfern, Dissening Opinions in International Commercial Arbitration: The Good, the Bad and the Ugly
  • Horacio A. Grigera Naón, Arbitration and Latin America: Progess and Setbacks
  • Julian D.M. Lew, Achieving the Dream: Autonomous Arbitration

Tuesday, September 25, 2007

Award: Guyana/Suriname Maritime Boundary Delimitation

Last week, on September 17, the arbitral tribunal constituted pursuant to Article 287 of the UN Convention on the Law of the Sea rendered its award in the Guyana/Suriname arbitration concerning the delimitation of Guyana’s maritime boundary with Suriname. The members of the tribunal were: Dolliver Nelson (President), Thomas Franck, Hans Smit, Ivan Shearer, and Kamal Hossain. The Permanent Court of Arbitration's press release, dated September 20, is here. An excerpt:

The boundary for the most part follows the equidistance line between Guyana and Suriname. However, in the territorial sea, the boundary follows a N10°E line from the starting point to the three nautical mile limit, and then a diagonal line, from the intersection of the N10°E line and the three nautical mile limit, to the intersection of the twelve nautical mile limit and the equidistance line.

The Arbitral Tribunal describes the boundary in the territorial sea as follows:

The delimitation line commences at Point 1, being the intersection of the low water line of the west bank of the Corentyne River and the geodesic line of N10°E which passes through Marker "B" established in 1936. . . . The Tribunal holds that the 10° Line is established between the Parties from the starting point to the 3 nm limit. [Thereafter,] the Tribunal arrives at a line continuing from the seaward terminus of the N10°E line at 3 nm, and drawn diagonally by the shortest distance to meet the line adopted . . . to delimit the Parties' continental shelf and exclusive economic zone.

The line adopted by the Tribunal to delimit the Parties' continental shelf and exclusive economic zone follows an unadjusted equidistance line.

The Arbitral Tribunal additionally held that both Guyana and Suriname violated their obligations under the 1982 Convention to make every effort to enter into provisional arrangements of a practical nature and not to hamper or jeopardize the reaching of a final agreement. Moreover, Suriname was found to have acted unlawfully when it expelled a drilling rig licensed by Guyana from the disputed area.

Annual Report of the ICJ

The Annual Report of the International Court of Justice for 2006-2007 (A/62/4) is now available.

Simpson: Law, War and Crime: War Crimes Trials and the Reinvention of International Law

Gerry Simpson (LSE - Law) has published Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Polity Press 2007). Here's the abstract:

From events at Nuremberg and Tokyo after World War II, to the recent trials of Slobodan Milošević and Saddam Hussein, war crimes trials are an increasingly pervasive feature of the aftermath of conflict. In his new book, Law, War and Crime, Gerry Simpson explores the meaning and effect of such trials, and places them in their broader political and cultural contexts. The book traces the development of the war crimes field from its origins in the outlawing of piracy to its contemporary manifestation in the establishment of the International Criminal Court in The Hague.

Simpson argues that the field of war crimes is constituted by a number of tensions between, for example, politics and law, local justice and cosmopolitan reckoning, collective guilt and individual responsibility, and between the instinct that war, at worst, is an error and the conviction that war is a crime.

Written in the wake of an extraordinary period in the life of the law, the book asks a number of critical questions. What does it mean to talk about war in the language of the criminal law? What are the consequences of seeking to criminalise the conduct of one's enemies? How did this relatively new phenomenon of putting on trial perpetrators of mass atrocity and defeated enemies come into existence? This book seeks to answer these important questions whilst shedding new light on the complex relationship between law, war and crime.

Monday, September 24, 2007

Bradley: The Story of Ex Parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization

Curtis A. Bradley (Duke Univ. - Law) has posted The Story of Ex Parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization. Here's the abstract:
In Ex parte Milligan, decided a year after the end of the Civil War, the Supreme Court held that the U.S. military had lacked the constitutional authority during the war to try U.S. citizens living in Indiana before a military commission. Milligan is often cited as a rare and admirable instance in which the Supreme Court invalidated Executive action during wartime in order to protect civil liberties, and it is frequently invoked in challenges to government action in the current war on terrorism. The precedential effect of Milligan, however, is far from clear. Part of the uncertainty stems from the decision's apparent inconsistency with widespread practices during and immediately after the Civil War, including most notably the use of military commissions to try thousands of individuals not formally associated with the Confederate army. Probably because of the particular way in which the government argued the Milligan case - focusing on the bounds of martial law rather than on military jurisdiction over violations of the laws of war - the Court in Milligan did not discuss this widespread military commission practice, and it is unclear to what extent the Court meant to repudiate it. The Supreme Court's subsequent treatments of Milligan only add to the uncertainty about its scope. The Court has construed Milligan as applying only to the military detention and trial of "non-belligerents," but neither Milligan nor the subsequent decisions provide a clear line for distinguishing between belligerents and non-belligerents. One possible approach would be to limit military jurisdiction to individuals covered by the international laws of war, but one problem with this approach is that the petitioners in Milligan were in fact charged with and convicted of violating the laws of war. The difficult issues of military jurisdiction that were present during the Civil War turn out to be with us still today.

New Issue: Journal du Droit International

The latest issue of the Journal du Droit International ("Clunet") (Vol. 134, no. 3, Juillet-Août-Septembre 2007) is out. Contents include:
  • Cécile Legros, Les conflits de normes en matière de contrats de transport internationaux de marchandises
  • Julien Cazala, L'adage male captus bene detentus face au droit international
  • Christian Byk, La Déctaration universelle sur la bioéthique et les droits de l'homme: la bioéthique, une utopie civilisatrice à l'ère de la mondialisation?
  • Manlio Frigo, Le rôle des règles de déontologie entre droit de l'art et régulation du marché
  • Yasuhiro Okuda, Aspects de la réforme du droit international privé au Japon

Workshop: Sands on the International Rule of Law

Philippe Sands (University College London - Law) will give the Harris Lecture today at the Indiana University, Bloomington School of Law on "Poodles and Bulldogs: The US, Britain and the International Rule of Law."

New Issue: Journal of Conflict Resolution

The latest issue of the Journal of Conflict Resolution (Vol. 51, no. 5, October 2007) is out. Contents include:
  • Darren Filson & Suzanne Werner, Sensitivity to Costs of Fighting versus Sensitivity to Losing the Conflict: Implications for War Onset, Duration, and Outcomes
  • Dawn Brancati, Political Aftershocks: The Impact of Earthquakes on Intrastate Conflict
  • David L. Rousseau & Rocio Garcia-Retamero, Identity, Power, and Threat Perception: A Cross-National Experimental Study
  • Daniel Jacobson & Edward H. Kaplan, Suicide Bombings and Targeted Killings in (Counter-) Terror Games
  • M. Vittoria Levati, Matthias Sutter, & Eline van der Heijden, Leading by Example in a Public Goods Experiment with Heterogeneity and Incomplete Information

Sunday, September 23, 2007

WTO Panel Report: Turkey - Measures Affecting the Importation of Rice

On Friday, a Panel established by the WTO's Dispute Settlement Body issued its Report on the case Turkey - Measures Affecting the Importation of Rice (DS334). The United States brought the complaint. The full Report can be found here. An excerpt containing just the Panel's conclusions and recommendations can be found here. A summary of the case can be found here.

New Issue: Virginia Journal of International Law

The latest issue of the Virginia Journal of International Law (Vol. 47, no. 4, Summer 2007) is out. Contents include:
  • Fabrizio Marrella & Christopher S. Yoo, Is Open Source Software the New Lex Mercatoria?
  • Christine Byron, A Blurring of the Boundaries: The Application of International Humanitarian Law by Human Rights Bodies
  • Rebecca Lee, Fiduciary Duty Without Equity: "Fiduciary Duties" of Directors Under the Revised Company Law of the PRC