Saturday, October 20, 2007

New Issue: Journal of Private International Law

The latest issue of the Journal of Private International Law (Vol. 3, no. 2, Oct. 2007) is out. Contents include:

  • Stephen G.A. Pitel, Enforcement of Foreign Non-Monetary Judgments in Canada (and Beyond)
  • Ruth Lamont, Habitual Residence and Brussells IIbis: Developing Concepts for European Private International Family Law
  • Weidong Zhu, China’s Codification of the Conflict of Laws: Publication of a Draft Text
  • Andrew Scott, Exclusionary Principles and the Judgments Regulation
  • Richard Frimpong Oppong, Mere Presence and International Competence in Private International Law

Conference: The ICC and the State

The Human Rights Law Centre and the Methods and Data Institute at the University of Nottingham will host a conference on The International Criminal Court and the State, November 9, 2007, in Nottingham. The draft program is here. Why attend?

As one of the four partners to the International Criminal Court Legal Tools Project, the Human Rights Law Centre is developing a database of national implementing legislation. The conference will set in context our work with the Court, focusing on issues of implementation and the impact of new technologies in the Legal Tools Project on international criminal justice.

A number of panel sessions will address the following issues:

Session 1: The ICC in Practice: Challenges and Prospects

Session 2: Justice on the ground: The ICC, the State and the use of new technologies

Session 3: Future Focus: The ICC Legal Tools Project

Acknowledgement: Kevin Jon Heller at Opinio Juris.

Friday, October 19, 2007

Drumbl: Actors and Law-Making in International Environmental Law

Mark A. Drumbl (Washington & Lee Univ. - Law) has posted Actors and Law-Making in International Environmental Law (in Research Handbook of International Environmental Law, forthcoming). Here's the abstract:
A strikingly diverse number of actors create international environmental law through strikingly diverse processes of law-making. The dynamism of actors and law-making in international environmental law contributes to similar developments in international law generally. Traditionally, the number of actors with international legal personality - in other words, those actors who actually could make international law - is limited. States were primary among this group, followed by international organizations. In recent years, however, considerable international environmental law effectively has been generated by non-governmental organizations, networked communities of experts, and administrative secretariats of treaty organizations. Major international conferences of states serve important social constructivist functions in setting norms and building consensus. The expansion in the number of actors that, whether de jure or de facto, make international environmental law has diversified the sources of international environmental law, thereby enriching the process by which it is made. Sources of international law include treaties, custom, general principles of law, and - in a subsidiary sense - judicial decisions and the writings of eminent publicists. However, much of international environmental law is informally generated by “soft law” - namely that which is “not yet or not only law” - in particular when it comes to setting norms and defining agendas for formal law-making processes. International environmental law has seen a particularly dynamic element of soft law-making and, in this vein, has been an important trendsetter for the expanding content of international law generally. This article explores in greater depth the following two questions: (1) Who makes international environmental law? and (2) What are the sources of international environmental law?

Ortino et al.: Investment Treaty Law: Current Issues II

Federico Ortino (British Institute of International and Comparative Law), Lahra Liberti (British Institute of International and Comparative Law), Audley Sheppard (Clifford Chance LLP), & Hugo Warner (British Institute of International and Comparative Law) have published Investment Treaty Law: Current Issues II (British Institute of International and Comparative Law 2007). Contents include:
    • Matthias Pannier, Nationality of Corporations under Domestic Law: A Comparative Perspective
    • Piero Bernardini, Nationality Requirements under BITs and Related Case Law
    • Norah Gallagher, The Requirement for Substantive Nationality
    • Maurice Mendelson, The Requirement for Continuous Nationality
    • Devashish Krishan, Nationality of Physical Persons
    • Sir Frank Berman, The Relevance of the Law on Diplomatic Protection in Investment Arbitration
    • Robert Wisner, Derivative Actions and Indirect Claims
    • Rudolf Dolzer & André von Walter, Fair and Equitable Treatment - Lines of Jurisprudence on Customary Law
    • Lluís Paradell, The BIT Experience of the Fair and Equitable Treatment Standard
    • Giacinto Della Cananea, Equivalent Standards under Domestic Administrative Law: A Comparative Perspective
    • M. Sornarajah, The Fair and Equitable Standard of Treatment: Whose Fairness? Whose Equity?
    • Stephen Fietta, Expropriation and the 'Fair and Equitable Treatment' Standard
    • Matthew Weiniger, The Standard of Compensation for Violation of the Fair and Equitable Treatment Standard
    • Peter Muchlinski, 'Caveat Investor'?: The Relevance of the Conduct of the Investor Under the Fair and Equitable Treatment Standard
    • Ian Laird, The Emergency Exception and the State of Necessity

Workshop: Lee on "Theorizing the Foreign Affairs Constitution"

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

Thursday, October 18, 2007

Schwendimann: Rechtsfragen des humanitären Völkerrechts bei Friedensmissionen der Vereinten Nationen

Felix Schwendimann has published Rechtsfragen des humanitären Völkerrechts bei Friedensmissionen der Vereinten Nationen (Schulthess 2007). Here's the abstract:
Nie zuvor waren so viele Friedensmissionen (Peacekeeping Operations) der Vereinten Nationen in Krisengebieten vor Ort. In den letzten Jahren hat der Sicherheitsrat dabei zunehmend «robuste» Operationen nach Kapitel VII der UNO Charta etabliert, die zur Erfüllung ihrer Aufgaben auch Waffengewalt einsetzen dürfen. Damit erhöht sich die Möglichkeit, dass UNO-Friedenssoldaten in Kämpfe mit staatlichen oder nicht-staatlichen Gruppen involviert werden. Das humanitäre Völkerrecht – das Spezialrecht, das während bewaffneten Konflikten zur Anwendung gelangt – regelt jedoch primär Auseinandersetzungen zwischen Staaten. Deshalb stellen sich bei Interventionen der Vereinten Nationen in bewaffnete Konflikte verschiedene Rechtsfragen des humanitären Völkerrechts, auf die in der vorliegenden Studie eingegangen wird.

Helfer: Redesigning the ECHR

Laurence R. Helfer (Vanderbilt Univ. - Law) has posted Redesigning the ECHR: Embeddedness as a Deep Structural Principle of the European Human Rights Regime (European Journal of International Law, forthcoming). Here's the abstract:

The European Court of Human Rights (ECHR) is the crown jewel of the world's most advanced international system for protecting civil and political liberties. In recent years, however, the ECHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favorable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the ECHR.

This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECHR should strive for individual or constitutional justice, but rather as raising fundamental questions concerning the Court's future identity. In particular, the article argues for recognition of "embeddedness" in national legal systems as a deep structural principle of the European Convention on Human Rights, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECHR's deference to national decision-makers is appropriate.

New Issue: Virginia Journal of International Law

The latest issue of the Virginia Journal of International Law (Vol. 48, no. 1, Fall 2007) is out. Contents include:
  • Shi-Ling Hsu & Austen L. Parrish, Litigating Canada-U.S. Transboundary Harm:International Environmental Lawmaking and the Threat of Extraterritorial Reciprocity
  • Mark L. Movsesian, Judging International Judgments
  • Christiana Ochoa, The Individual and Customary International Law Formation
The authors are currently blogging about their contributions at Opinio Juris.

ICC: Surrender and Transfer of Katanga

Yesterday, the Democratic Republic of the Congo surrendered and transferred Germain Katanga, alleged commander of the Patriotic Resistance Force in Ituri, to the International Criminal Court (press release here; statement by the Office of the Prosecutor here). A sealed warrant for Katanga's arrest was issued on July 2 (and unsealed today). Katanga's warrant for arrest lists nine counts: three counts of crimes against humanity (murder, inhumane acts, and sexual slavery); and six counts of war crimes (wilful killing, inhuman or cruel treatment, using children under the age of fifteen years to participate actively in hostilities, sexual slavery, intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities, and pillaging a town or place even when taken by assault). All charges pertain to an attack on the village of Bogoro, in the territory of Ituri, on or around February 24, 2003. Katanga is the second person in the custody of the ICC. Thomas Lubanga Dyilo, who is also charged in relation to the situation in the DRC, was the first.

Lecture: Johnson on "Advancing International Justice"

Larry D. Johnson (Assistant Secretary-General for Legal Affairs, United Nations) will give a lecture today at the University of Pittsburgh School of Law on "Advancing International Justice: The Varieties of UN-sponsored Criminal Tribunals."

Wednesday, October 17, 2007

SFRC: Report on Protocol to FCN Treaty with Denmark

On Monday, October 15, the Senate Foreign Relations Committee submitted its Report (Exec. Rept. 110-1; available here) on the Protocol to the Treaty of Friendship, Commerce, and Navigation Between the United States and Denmark (Treaty Doc. 108-8). The Committee had favorably reported the Protocol on September 11, following a July 17 hearing.

Weingärtner: Einsatz der Bundeswehr im Ausland

Dieter Weingärtner (Director of Legal Affairs, Federal Ministry of Defense, Germany) has published Einsatz der Bundeswehr im Ausland: Rechtsgrundlagen und Rechtspraxis (Nomos 2007). Contents include:
  • Dieter Weingärtner, Auslandseinsätze als Rechtsmaterie: Einführung
  • Maxim Kleine, Die militärische Komponente der ESVP im Vertrag von Nizza und im Entwurf der Verfassung für Europa
  • Karin Prieur, Europäische Sicherheits- und Verteidigungspolitik in der Praxis: der Einsatz "ALTHEA" in Bosnien und Herzegowina
  • Thilo Rensmann, Die Anwendbarkeit von Menschenrechten im Auslandseinsatz
  • Georg Nolte, Menschenrechtsschutz gegenüber internationalen Instanzen im Kosovo: die Vorschläge der Venedig-Kommission des Europarats und ihre Umsetzung
  • Andreas L. Paulus, Die Parlamentszustimmung zu Auslandseinsätzen nach dem Parlamentsbeteiligungsgesetz
  • Sylvia Charlotte Spies, Die Bedeutung von "Rules of Engagement" in multinationalen Operationen: vom Rechtskonsens der truppenstellenden Staaten zu den nationalen Dienstanweisungen für den Einsatz militärischer Gewalt
  • Karl Satzinger, Das österreichische Auslandseinsatzrecht

Minow: Living Up to Rules

Martha Minow (Harvard - Law) has published Living Up to Rules: Holding Soldiers Responsible for Abusive Conduct and the Dilemma of the Superior Orders Defence (McGill Law Journal, Vol. 52, no. 1, p. 1, Spring 2007). Here's the abstract:

Recent world events underscore the importance of the dilemma of the superior orders defence and the question of how to prevent soldiers from undertaking abusive conduct or committing atrocities. This article examines the degree to which holding individual soldiers legally responsible for their actions can be seen to be an effective strategy for the prevention of atrocities and explores complementary strategies aimed at the prevention of abusive conduct by soldiers.

The article surveys historical and legal materials to illustrate the ongoing debate over the scope of the superior orders defence in U.S. and international law. The author then surveys a range of social science literature that suggests why some people participate in atrocities, and illuminates how difficult it would be for individuals to understand and comply with a rule expecting compliance with all superior orders except those that are illegal. The author concludes that the evidence undermines the likelihood that a norm establishing individual responsibility would succeed in changing conduct.

The author argues that it is important to restrict the application of the superior orders defence in order to uphold a symbolic ideal of individual responsibility, but that real prospects for preventing atrocities by soldiers depend on changing the organizational design and resources surrounding the soldier and specifying new obligations for those in command. The author recommends changes to military incentives, culture, and practices. Proposed strategies include the provision of meaningful and effective training programs for both soldiers and officers, the establishment of a military culture in which soldiers understand their superiors to care about violations of law and morality, and the integration of legal analysis into the daily operations of all levels of the military hierarchy so that the burden of understanding lawfulness does not rest solely on the shoulders of the ordinary soldier.

New Issue: Nordic Journal of International Law

The latest issue of the Nordic Journal of International Law (Vol. 76 , nos. 2-3, 2007) is out. Contents include:
  • Malgosia Fitzmaurice & Jill Marshall, The Human Right to a Clean Environment-Phantom or Reality? The European Court of Human Rights and English Courts Perspective on Balancing Rights in Environmental Cases
  • Patrick Dumberry, Obsolete and Unjust: The Rule of Continuous Nationality in the Context of State Succession
  • Costas Paraskeva, Reforming the European Court of Human Rights: An Ongoing Challenge
  • Katarina Månsson, Reviving the 'Spirit of San Francisco': The Lost Proposals on Human Rights, Justice and International Law to the UN Charter
  • Linda Engvall, The Future of Extended Joint Criminal Enterprise-Will the ICTY's Innovation Meet the Standards of the ICC?
  • Hans Corell, Who Needs Reforming the Most-the UN or its Members?

New Issue: The Law and Practice of International Courts and Tribunals

The latest issue of The Law and Practice of International Courts and Tribunals (Vol. 6, no. 2, 2007) is out. Contents include:
  • David M. Aaron, Reconsidering Dualism: The Caribbean Court of Justice and the Growing Influence of Unincorporated Treaties in Domestic Law
  • Alberto Alvarez-Jiménez, The Enhancing of the WTO Judiciary's Control over Disputes and Suggestions for the Exceptional Expansion of Such Control to Favour Developing and Least Developed Countries
  • Giulia Bigi, The Decision of the Special Court for Sierra Leone to Conduct the Charles Taylor Trial in The Hague
  • Dov Jacobs, A Samson at the International Criminal Court: The Powers of the Prosecutor at the Pre-Trial Phase
  • Colin T. McLaughlin, The Sui Generis Trial Proceedings of the International Criminal Court

New Volume: Anuario Español de Derecho Internacional

The latest volume of the Anuario Español de Derecho Internacional (Vol. 22, 2006) is out. Contents include:

  • José Luis de Castro Ruano & Alexander Ugalde Zubiri, La acción exterior vasca en la propuesta de Estatuto Político de la Comunidad de Euskadi de 30 de diciembre de 2004
  • Caterina García i Segura, Silvia Morgades Gil, & Angel J. Rodrigo Hernández, Las relaciones exteriores de la Generalitat en el Estatuto de Autonomía de Cataluña de 2006
  • Pablo Antonio Fernández Sánchez, El nuevo Estatuto de Autonomía de Andalucía y la Acción Exterior
  • Cesáreo Gutiérrez Espada, La militarización del espacio parece ya inevitable (La nueva National Space Policy [2006] de los Estados Unidos de América)
  • Yolanda Gamarra Chopo, Los límites del multilateralismo al control de la (no) proliferación nuclear: la cuestión iraní como pretexto
  • Carlos R. Fernández Liesa, Usos de la noción de justicia en el Derecho internacional
  • Jaume Ferrer Lloret, La protección internacional de las minorías nacionales en Europa: el caso de los romaníes
  • Inmaculada González García, El acuerdo España - Marruecos de readmisión de inmigrantes y su problemática aplicación: las avalanchas de Ceuta y Melilla
  • Eugenia López-Jacoiste Díaz, La responsabilidad de proteger: reflexiones sobre su fundamento y articulación
  • Maurizio Arcari, Observations sur les problèmes juridiques posés par les sanctions des Nations Unies et leur évolution récente
  • Marco Eugenio Odello, The Developing Legal Status of the Organisation for Security and Co-operation in Europe
  • Carlos Ruiz Miguel, El acuerdo de Pesca UE - Marruecos o el intento español de considerar a Marruecos como "potencia administradora" del Sahara Occidental
  • Enrico Milano, The new Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco: fishing too south?
  • Nuria Pastor Palomar, El principio de subsidiariedad y su incidencia en el respeto de los Derechos fundamentales por la Unión Europea
  • Bénédicte Real, La Commission de consolidation de la paix: un organe avec un avenir prometteur?
  • Carlos Echeverría Jesús, El componente yihadista en los atentados del 11-M: lecciones aprendidas ante el inicio del proceso judicial en febrero de 2007
  • Diane S. Segal, La Ley de la Guerra: una comparación bíblica
  • María José Cervell Hortal, La explotación ilegal de los recursos naturales de un estado a la luz de la sentencia del Tribunal Internacional de Justicia sobre las actividades armadas en el territorio de Congo (2005)
  • José Elías Esteve Moltó, El auto de admisión a trámite de 10 de enero de 2006 de la Audiencia Nacional. La aplicación de la jurisdicción universal al caso del genocidio del Tíbet
  • José Roberto Pérez Salom & María José Cervell Hortal, Decisiones de órganos judiciales españoles en materia de Derecho internacional público

Tuesday, October 16, 2007

ICTY: Appeals Chamber Judgment in Case Against Halilović

Today, the ICTY Appeals Chamber rendered its judgment in the case (No. IT-01-48) against former Deputy Commander and Chief of Main Staff of the Army of the Republic of Bosnia and Herzegovina Sefer Halilović. Halilović had been indicted on one count of war crimes (murder) under a theory of superior responsibility. On November 16, 2005, the Trial Chamber acquitted Halilović. In particular, the Trial Chamber found "that the Prosecution has failed to prove beyond reasonable doubt that Sefer Halilović was either de jure or de facto commander of an operation called 'Operation Neretva,' which the Prosecution alleges was carried out in Herzegovina . . . [and] that the Prosecution has failed to establish that Sefer Halilović had effective control over the troops which committed the crimes in the areas of Grabovica and Uzdol."

In today's decision (not yet available online; summary here; press release here), the Appeals Chamber dismissed the Prosecution's appeal of Halilović's acquittal. The Prosecution had raised four grounds of appeal: three relating to the elements of superior responsibility and one pertaining to the admission into evidence of the report and proposed testimony of an expert witness. The Appeals Chamber found that the Trial Chamber was within its discretion when it found that Halilović did not have the required degree of "effective control" (the first ground of appeal). Consequently, the Appeals Chamber concluded that the remaining grounds of appeal were moot. Hence, Halilović's acquittal was affirmed.

Call for Papers: Yale Journal of International Law Young Scholars' Conference

This coming spring, the Yale Journal of International Law will host its sixth annual Young Scholars' Conference. Here's the call for papers:

The Yale Journal of International Law (YJIL) is accepting submissions for its Young Scholars' Conference, which will take place on March 1, 2008. The Conference aims to encourage scholarship in international law among current J.D. students by giving them an opportunity to present a paper and receive feedback from distinguished professors in the field. The Conference will include panel presentations of student scholarship, a roundtable discussion on careers in legal academia, a keynote address, and a closing dinner. Two of the papers presented at the Conference will be selected for publication in YJIL. Support for the Conference has been provided by the Oscar M. Ruebhausen '37 Fund.

YJIL will accept papers of no more than 15,000 words (including footnotes) on topics in international law from current J.D. students. Papers that have previously been published will not be considered. Presenters must be able to travel to New Haven, CT, for a full day of events on March 1, 2008. YJIL will provide presenting students with accommodations and cover up to $200 of their conference-related travel expenses.

Submissions, accompanied by author's c.v., should be sent to Deadline: December 10, 2007.

New Issue: ASA Bulletin

The latest issue of the ASA Bulletin (Vol. 25, no. 3, 2007) is out. Contents include:
  • Felix Dasser, International Arbitration and Setting Aside Proceedings in Switzerland: A Statistical Analysis
  • Georg von Segesser, Vorsorgliche Massnahmen im Internationalen Schiedsprozess
  • Georg von Segesser, Extract from the 'Report of the United Nations Commission on International Trade Law on the work of its thirty-ninth session, 19 June - 7 July 2006' - Annex I
  • Hubertus Schumacher, Zu Inhalt und Bestimmtheit von Schiedssprüchen und Vollstreckungsanträgen
  • Dirk De Meulemeester & Maud Piers, Merits revisited? Arbitral Award, Public Policy and Annulment - The Belgian Experience
  • The Graduate Institute of International Studies (HEI) – THE FIRST LALIVE LECTURE, H.E. Judge Rosalyn Higgins, President of the International Court of Justice, 'The International Court of Justice and some private international law thoughts'

Monday, October 15, 2007

Judge Byron's Address to the UN General Assembly

Today, Judge Dennis Byron, President of the International Criminal Tribunal for Rwanda, addressed the UN General Assembly to present the Tribunal's Annual Report. The ICTR has not yet released the full text of the address. Here's the UN Department of Public Information summary of Judge Byron's remarks:

Dennis Byron, President of the International Criminal Tribunal for Rwanda, presenting the Tribunal’s twelfth annual report, said the Trial Chambers had rendered judgements involving five accused and more than 250 interlocutory and pretrial decisions. Trials of five other accused had been completed and awaited judgement. In addition, trials involving 22 other accused were in progress and judgements would be delivered early next year. As of today, the cases of the six remaining detainees were at the pretrial stage and were expected to begin early next year.

The Appeals Chamber had heard an increased number of cases between July 2006 and June this year, he said, noting that judgements on appeal had been delivered on six individuals, bringing the total number of completed appeals cases to 19. More than 100 interlocutory decisions and pre-appeal orders and decisions had been delivered. Four accused had pending appeals. He expected the Chambers’ workload to substantially increase.

Prosecutor Hassan Jallow’s efforts continued to focus on securing the arrest of those still at large, including Félicien Kabuga, he said. He thanked INTERPOL for its assistance in the arrest of three fugitives. The Registry continued to play a crucial role in the Tribunal’s work, providing administrative and judicial support to all trials. Member State cooperation was paramount to the successful accomplishment of the Tribunal’s mission, particularly in securing the arrest of the 15 accused still at large. The referral of cases and the serving of sentences for convicted persons were among issues that required assistance.

Strengthening Rwandan judicial capacity was a key component of the Tribunal’s mandate, he continued, noting that the Tribunal had provided support to the judicial and other sectors through capacity-building. He invited States to help sustain such projects, emphasizing that staff departures at the Registry also were on the rise, which could negatively impact the completion strategy. He called on States to develop a mechanism to address their concerns.

Paying tribute to all Judges who had contributed greatly to the Tribunal’s work, he called on the General Assembly to help adjust the conditions of service for ad litem Judges, who had become instrumental to the completion strategy. Since January 1997, the Tribunal had arrested 75 individuals from 90 indicted persons, including former Prime Minister Jean Kambanda and 14 members of his interim Government.

Recalling that the motive for establishing the Tribunal had been to bring peace to the Great Lakes region, he stressed that there were legal criteria by which it must be judged as a court. The explicit political purpose might best be served by its success as a court and the fairness of its process. It was critically important to ensure that essential fair trial rights were not prejudiced. The Tribunal had established an essential record of international humanitarian law violations committed in 1994 in Rwanda; its leading decisions were already providing guidance for national and international courts designed to enforce international humanitarian law, such as the Special Court for Sierra Leone.

He said there would be no lasting peace without a credible international justice perspective that united the Rwandan people and the Great Lakes region. He reiterated his unwavering commitment to the Tribunal’s mandate, implementation of its completion strategy and bringing justice to those most responsible for genocide and international humanitarian law violations in Rwanda in 1994. He requested continued assistance in the fight against impunity.

Lowe: International Law

Vaughan Lowe (Oxford - Law) has published International Law (Oxford Univ. Press 2007). Here's the abstract:

In the established tradition of the Clarendon Law Series, International Law is both an introduction to the subject and a critical consideration of its central themes and debates. This book explores the scope and functioning of international law, and how it helps to underpin our international political and economic systems. It goes on to examine the wider theoretical implications of international law's role in modern society.

The opening chapters of the book explain how international law underpins the international political and economic system by establishing the basic principle of the independence of States, and their right to choose their own political, economic, and cultural systems. Subsequent chapters focus on the limits of national freedom of choice - the international minimum standards set in international human rights law, and the 'macro-political' rights of minorities, and the rights of peoples to self-determination. Two final chapters look at the international law principles applicable to the use of force and the control of international crime, as well as the processes for the prevention and settlement of international disputes.

Of all legal subjects, international law is at once the most richly variegated and arguably the least understood, even by lawyers. For the past two decades it has been the focus of intense analysis and comment by legal philosophers, international relations specialists, linguists, professional lawyers, historians, economists, and political scientists, as well as those who study, teach, and practice the discipline. Yet, the realities of international trade and communication mean that regulations in one State often directly affect matters within others. This book explains how through the organizing concepts of territory, sovereignty, and jurisdiction international law seeks to achieve an established set of principles according to which the power to make and enforce policies is distributed among States.

Judge Pocar's Address to the UN General Assembly

Today, Judge Fausto Pocar, President of the International Criminal Tribunal for the Former Yugoslavia, addressed the UN General Assembly to present the Tribunal's Annual Report. The full address is here. Here's the ICTY press release:

In today's address to the UN General Assembly on the presentation of the International Tribunal's fourteenth Annual Report, President Fausto Pocar highlighted the organisation's unparalleled efficiency and its profound impact on the development of international criminal justice, while flagging issues relevant to the completion of its mandate.

In his speech, President Pocar reported that the International Tribunal has indicted a total of 161 accused persons, with trial and appeal proceedings completed to date against 109 of those persons, including the Appeal Judgement in the Halilović case, to be rendered tomorrow. Proceedings in seven cases against eight persons are pending on appeal, with three appeals in one case expected shortly. Currently, 26 accused in seven cases are in trial proceedings, 12 accused are awaiting trial and four fugitives remain at large.

The President emphasized that ongoing trial and appeal proceedings have been conducted at an unprecedented pace, with seven trials running simultaneously in the International Tribunal's three courtrooms, and the number of appeal judgements reaching a record level of 11 judgements issued in the last year, including seven judgements in the last six months. The President summed up the International Tribunal's unique achievements by stating that, taking account of the fact that most cases are heard at both first instance and on appeal, the International Tribunal had thus far issued more than three times the amount of judicial decisions than all the other international criminal courts and tribunals combined. The President acknowledged in this regard the full commitment of all of the Judges of the International Tribunal to meeting completion strategy deadlines all the while mindful of their duty to ensure the fairness of proceedings and full respect for the rights of the accused.

President Pocar also stressed that one of the International Tribunal's main focus in the last year has been its partnership with States of the former Yugoslavia , which aims at ensuring that these States benefit as much as possible from its work. The President affirmed that the referral of cases pursuant to Rule 11bis of the Rules of Procedure and Evidence ("Rules") has helped establish those courts as the national leaders in the domestic prosecution of war crimes cases and that it is these courts which will continue the International Tribunal's mission of ending impunity. The President added that the International Tribunal had amended its Rules to allow local judicial authorities to directly petition the International Tribunal's Judges for access to protected information held by the International Tribunal and relevant to local proceedings. The President also referred to the wide-ranging outreach activities undertaken by all of the organs of the International Tribunal to strengthen cooperation with and transfer know how to Judges and Prosecutors in the former Yugoslavia, and to ensure the dissemination of the International Tribunal's judgements and decisions to the local populations. The President finally insisted on the importance of providing continuing support to the criminal justice systems in the States of the former Yugoslavia , so as to ensure that they have sufficient resources to guarantee the integrity of criminal proceedings against persons accused of international crimes. He noted in particular the need for additional training of prison staff and the provision of conditions of detention in accordance with international human rights standards.

Addressing the question of the International Tribunal's legacy, the President reported that twelve issues had been identified by ICTY and ICTR as residual issues that will remain following the completion of cases currently pending on the International Tribunals' dockets, such as outstanding fugitives, witness protection, enforcement and commutation of sentences, requests for review of judgements, and archives. The President indicated that a final paper on legacy issues had been submitted jointly by ICTY and ICTR to the Security Council Working Group on the ad hoc International Tribunals in September of this year and that the International Tribunal would pursue its work with the Working Group in the coming months.

With respect to State cooperation, the President emphasized that the completion of the mandate of the International Tribunal has always been tied to the issue of cooperation from States of the former Yugoslavia , including with respect to the arrest of outstanding fugitives. The President noted in this regard that while two of the International Tribunal's six longstanding fugitives were arrested and transferred to The Hague, Zdravko Tolimir on 31 May 2007 thanks to the cooperation of Serbia and of the Republika Srpska, and Vlastimir Đorđević on 17 June 2007 thanks to the cooperation of Serbia and of Montenegro, the International Tribunal remained frustrated with the continued failure of the international community to secure the arrest of the remaining fugitives, in particular Radovan Karadžić and Ratko Mladić.

The President finally turned to the pressing issue of the retention of the International Tribunal's qualified staff and of the International Tribunal's Judges. The President reiterated that this issue was crucial to the continuing efficiency of the International Tribunal's work, and urged the General Assembly not to overlook the impact of staff departures on the completion strategy.

In conclusion, President Pocar stated that the International Tribunal had proved to the world that fighting impunity while upholding due process norms was possible, and had paved the way for the prosecution of serious violations of international humanitarian law in jurisdictions around the globe. He thanked the Members of the Assembly for their support to the International Tribunal, and called on all Member States to continue assisting the International Tribunal in its commitment to successfully complete its work.

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 22, no. 9, September 2007) is out.

Harrison: The Human Rights Impact of the World Trade Organisation

James Harrison (Univ. of Warwick - Law) has published The Human Rights Impact of the World Trade Organisation (Hart Publishing 2007). Here's the abstract:
This book examines the impact of international trade rules on the promotion and protection of human rights, and explains why human rights are an important mechanism for assessing the social justice impact of the international trading system. The core of the book is an in depth analysis of the various ways in which international trade law rules impact upon human rights protection and promotion, emphasising the significance of the jurisdictional context in which the human rights issues arise: coercive measures that are taken by one country to protect and promote human rights in another country are distinguished from measures taken by a country to protect and promote the human rights of its own population. The author contends that international trade law rules have utilised certain ad hoc mechanisms to deal with particularly pressing human rights concerns in the trade context, but also argues that these mechanisms do not provide systemic solutions to the inter-linkages between the two legal systems. The author therefore examines mechanisms by which human rights arguments could be more systematically raised and adjudicated upon in WTO dispute settlement proceedings, highlighting future opportunities and difficulties. He concludes by considering broader systemic issues outside the dispute settlement process that need to be addressed if trade law rules are to successfully protect and promote human rights.

Van Aaken: Perils of Success? The Case of International Investment Protection

Anne Van Aaken (Univ. of St. Gallen - Law) has posted Perils of Success? The Case of International Investment Protection (European Business Organization Law Review, forthcoming). Contents include:

Foreign direct investment forms an ever more important part of globalized market structures and International Investment Law has become one of the most successful and judicialized areas of public international law. In order to attract investment, states commit themselves to treaties which restrict their regulatory sovereignty in ways which are sometimes unpredictable, owing to vague terms in the treaties and the use by investment tribunals of their delegated discretion broadly.

This article uses economic contract theory in order to understand whether the commitment problem ex ante and the flexibility problem ex post are solved optimally. It is hypothesized that the participation constraint of states may be overlooked by investment tribunals, thereby leading to undesired weakened protection of investors in the long run due to reactions by states. First, states may opt out of the system, e.g. by exiting treaties or by non-compliance. Second, they may also water down the substantive or procedural protections. Third, whereas investment treaties were seen in the beginning as a restraint on developing countries, more and more investment flows to equally highly regulated developed countries. As legal protection is reciprocal but the capital flows used to be unilateral, developed countries might also react to their restriction of sovereignty, as e.g. the United States have already done. These perils could lead to a backlash in international investment protection of which indications are already visible.

Khulumani v. Barclay National Bank Ltd.

On Friday, October 12, a panel of the U.S. Court of Appeals for the Second Circuit issued its decision in Khulumani v. Barclay National Bank Ltd. (Nos. 05-2141 & 05-2326). (New York Times story here; Reuters story here; Bloomberg story here.) Plaintiffs sued dozens of major corporations, both U.S. and foreign, alleging liability for aiding and abetting the South African system of apartheid. (See the complaint here.) The district court (District Judge Sprizzo of the U.S. District Court for the Southern District of New York) dismissed the plaintiffs' claims under the Alien Tort Statute (absence of subject matter jurisdiction) and the Torture Victim Protection Act (failure to state a claim). On appeal, a unanimous panel (Circuit Judges Katzmann and Hall, and District Judge Korman, sitting by designation) affirmed dismissal of the TVPA claims, but a divided court (Judge Korman, dissenting) vacated the district court's dismissal of the ATS claims. A per curiam opinion set out the decision; each of the three panelists wrote separately. Notably, though reaching the same result, Judges Katzmann and Hall disagreed as to the applicable law for determining accessorial liability under the ATS: Judge Katzmann applied international law, while Judge Hall applied federal common law. Having found subject matter jurisdiction under the ATS, there remain a number of difficult issues for the district court to resolve on remand, including whether to dismiss the case on prudential grounds and whether the plaintiffs have stated a cause of action under the ATS.

Sunday, October 14, 2007

New Issue: Journal of Philosophy of International Law

The latest issue of the Journal of Philosophy of International Law (Vol. 2, 2007) is out. Contents include:
  • Chalen Westaby, A critical analysis of orthodox approaches to customary international law and the search for transcendence
  • Veijo Heiskanen, Death of the layman: the legacy of deconstruction and the philosophy of international law
  • Petar Bojanic, Terrorism: terror and explosion "... importance of fire and the construction of bombs ..."
  • Paulo de Brito, Towards a natural law theory of international law

New Issue: African Journal of International and Comparative Law

The latest issue of the African Journal of International and Comparative Law (Vol. 15, no. 2, September 2007) is out. Contents include:
  • Charles Chernor Jalloh, The Contribution of the Special Court for Sierra Leone to the Development of International Law
  • Chukwuka N. Eze, The Bamako Convention on the Ban of the Import into Africa and the Control of the Transboundary Movement and Management of Hazardous Wastes within Africa: A Milestone in Environmental Protection?
  • Ntombizozuko Dyani, Sexual Violence, Armed Conflict and International Law in Africa
  • Sylvie Lorthois, La Convention de la CEDAO sur les Armes Légères et de Petit Calibre