Saturday, November 3, 2007

New Issue: World Trade Review

The latest issue of the World Trade Review (Vol. 6, no. 3, November 2007) is out. Contents include:

  • Donald H. Regan, The meaning of ‘necessary’ in GATT Article XX and GATS Article XIV: the myth of cost–benefit balancing
  • Alexander Keck, Bruce Malashevich, & Ian Gray, A ‘probabilistic’ approach to the use of econometric models in sunset reviews
  • Sushil Mohan, Reforming agricultural trade among developing countries
  • Susan Ariel Aaronson, Seeping in slowly: how human rights concerns are penetrating the WTO
  • Alberto Alvarez-Jiménez, A reasonable period of time for dispute settlement implementation: an operative interpretation for developing country complainants

Sixth Committee: Week in Review

The Sixth Committee of the UN General Assembly focused this week on the Annual Report of the International Law Commission. On Friday, Judge Rosalyn Higgins, President of the International Court of Justice, addressed the Committee, her third speech at the United Nations in five days. Here are the UN press releases describing this week's meetings:






SFRC: Treaties Favorably Reported

In addition to the Law of the Sea Convention, the Senate Foreign Relations Committee, at its business meeting on Wednesday, ordered favorably reported the following tax treaties:
  • the Convention Between the Government of the United States of America and the Government of the Kingdom of Belgium for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and accompanying Protocol, signed on November 27, 2006, at Brussels (Treaty Doc. 110-03);
  • the Protocol Amending the Convention Between the Government of the United States of America and the Government of the Kingdom of Denmark for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income signed at Copenhagen May 2, 2006 (Treaty Doc. 109-19);
  • the Protocol Amending the Convention Between the Government of the United States of America and the Government of the Republic of Finland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital, signed at Helsinki May 31, 2006 (Treaty Doc. 109-18); and
  • the Protocol Amending the Convention Between the United States of America and the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital and to Certain Other Taxes, Signed on August 29, 1989, signed at Berlin June 1, 2006, along with a related Joint Declaration (Treaty Doc. 109-20).

Law of the Sea Convention: Today in the NY Times and the Wall Street Journal

The editorial pages of the New York Times and the Wall Street Journal again focus on the Law of the Sea Convention. In the Times, Gail Collins brings her usual wit to the subject, at the expense of the Republican presidential candidates (here). The Journal calls on the Senate to reject the treaty (here).

Friday, November 2, 2007

Higgins and Kirsch Address UN General Assembly

On Thursday, November 1, Judge Rosalyn Higgins, President of the International Court of Justice, and Judge Philippe Kirsch, President of the International Criminal Court, addressed the UN General Assembly. Higgins's address is here; Kirsch's is here.

Neumayer: Qualified Ratification: Explaining Reservations to International Human Rights Treaties

Eric Neumayer (LSE - Geography & Environment) has posted Qualified Ratification: Explaining Reservations to International Human Rights Treaties (Journal of Legal Studies, Vol. 36, no. 2, p. 397, 2007). Here's the abstract:
The legitimacy and role of reservations to international human rights treaties is a heavily contested issue. From one perspective, reservations, understandings and declarations (RUDs) are a legitimate means to account for diversity across countries and are used predominantly by those countries that take human rights seriously. From an alternative perspective, RUDs are regrettable at best, and detrimental to the international human rights regime at worst. One can derive testable hypotheses from both perspectives with regard to which countries can be expected to set up a higher number of RUDs. Specifically, the first account predicts that liberal democracies set up more RUDs than other countries, whereas the competing account holds the opposite, possibly after distinguishing among the group of liberal democracies. This article puts these hypotheses to an empirical test with respect to six core international human rights treaties. The results suggest that the revealed RUD behavior of state parties to the treaties looked at is strongly in line with the first perspective since liberal democracies have more, not fewer RUDs than other countries.

Goldstein & Steinberg: Negotiate or Litigate? Effects of WTO Judicial Delegation on U.S. Trade Politics

Judith Goldstein (Stanford Univ. - Political Science) & Richard H. Steinberg (UCLA - Law) have posted Negotiate or Litigate? Effects of WTO Judicial Delegation on U.S. Trade Politics (Law and Contemporary Problems, forthcoming). Here's the abstract:
This article argues that the Appellate Body of the World Trade Organization has engaged in substantial lawmaking since its inception and that, in many circumstances, decisions rendered by court-like bodies in the WTO are adhered to even when the same policy would not gain support in multilateral negotiations. The emergence of judicial lawmaking at the WTO is due to largely to the decline of non-reciprocity in the regime, which has catalyzed North-South deadlock in the legislative process. As the prospects for broad legislative rule-making have declined, judicial lawmaking has become more common. Judicial lawmaking is consequential only if the powerful members of the WTO choose to adhere to judicial rulings. To explain adherence, we offer a model of decision-making in the United States and suggest that, in a number of circumstances, the President and Congress find compliance with international court decisions to be in their interest, resulting in trade opening that would not have resulted from ministerial negotiations.

Thursday, November 1, 2007

Addresses by Higgins and Pocar to Legal Advisers

On Monday, October 29, Judge Rosalyn Higgins, President of the International Court of Justice, and Judge Fausto Pocar, President of the International Criminal Tribunal for the Former Yugoslavia, addressed the annual meeting of the Legal Advisers of the Ministries of Foreign Affairs at the United Nations. Higgins's address is here and Pocar's address is here.

Lecture: Buxbaum on "National Jurisdiction over Global Business Networks"

Hannah Buxbaum (Indiana Univ., Bloomington - Law) will give the Ninth Snyder Memorial Lecture today at the Lauterpacht Centre for International Law at the University of Cambridge. Buxbaum's lecture is on "National Jurisdiction over Global Business Networks."

Wednesday, October 31, 2007

SFRC: Law of the Sea Convention Vote

Earlier today, the Senate Foreign Relations Committee, by a vote of 17-4, decided to favorably report the Law of the Sea Convention. It is unclear when and if a resolution of ratification will be put before the full Senate for a vote.

UPDATE: Video of the SFRC's business committee meeting, where the vote took place, can be found here.

ICTY: Appeals Chamber Judgment in Case Against Zelenović

Today, the ICTY Appeals Chamber rendered its judgment in the case (No. IT-96-23/2) against former Bosnian Serb soldier and military policeman Dragan Zelenović. Earlier this year Zelenović pleaded guilty to charges of crimes against humanity, including torture (three counts) and rape (four counts) of Bosnian Muslim women and girls from the Foča municipality in eastern Bosnia and Herzegovina. On April 4, 2007, the Trial Chamber sentenced him to fifteen years imprisonment, and it was that sentence that was the subject of today's judgment. The Appeals Chamber ruled that the Trial Chamber properly assessed any mitigating circumstances and that the Trial Chamber need not have taken account of the Stanković Appeal Judgment of the State Court of Bosnia and Herzegovina, which was made public subsequent to the Trial Chamber's decision in this case. A summary of the judgment is here; a press release is here; the judgment itself is not yet available.

Workshop: Berman on "Global Legal Pluralism"

Paul Schiff Berman (Univ. of Connecticut - Law) will give a talk today at the University of Connecticut School of Law Faculty Workshop on "Global Legal Pluralism."

SFRC: Law of the Sea Vote Today

The Senate Foreign Relations Committee is scheduled to vote on the Law of the Sea Convention today. (It will also vote on a number of other pending treaties.) There is little doubt that the Committee will vote to favorably report the Convention. But what matters more, as the New York Times points out in an editorial in today's paper, is that the vote be overwhelming. Why? Because Senate Majority Leader Reid is reluctant to put the Convention to a vote in the full Senate unless he is confident it will receive significant bipartisan support. That is, he doesn't want a ratified Convention to become a partisan weapon in future elections. The Washington Post also editorializes today in favor of the treaty. Here is the Times's editorial followed by that of the Post:

On one side of the issue lies a coalition of odd but powerful political bedfellows: President Bush, the environmental community, the military, the oil, shipping and fishing industries and the top Democratic and Republican members of the Senate Foreign Relations Committee. On the other side lies a handful of cranky right-wingers. Yet the issue - Senate ratification of the Law of the Sea - remains unsettled, just as it has been for a quarter of a century.

The United Nations approved the Law of the Sea in 1982. It governs uses of the world’s oceans, establishing ground rules for everything from navigation to deep seabed mining. It is all fairly common-sensical stuff, but for years opponents have charged that the treaty threatens American sovereignty. And for years, Senate leaders have decided that it is not worth the fight.

Now it most certainly is. The steady retreat of the sea ice in the Arctic Ocean - caused largely by global warming - has opened up an inaccessible part of the world to shipping and potentially vast deposits of oil, natural gas and mineral resources. This, in turn, has touched off a scramble among nations to determine who owns what on the ocean floor. Unless the United States ratifies the treaty, it will not have a seat at the table when it comes time to sort out competing claims.

Today, the treaty will face yet another critical moment in its long and troubled life when the Foreign Relations Committee votes on whether to send it to the floor. The vote is expected to favor the treaty. But the task facing the Democratic chairman, Joseph Biden of Delaware, and the ranking Republican member, Richard Lugar of Indiana, is to produce not just a favorable vote but an overwhelming vote sufficient to persuade the Senate majority leader, Harry Reid of Nevada, to finally move on ratification.

There are many other reasons besides oil and gas to ratify this worthy document, not least the fact that it would allow the United States to play a leadership role on a whole range of global ocean issues, including overfishing and pollution. But the possibility of losing out on some major underseas discoveries at a time when oil is approaching $100 a barrel should make even the most reluctant senators take notice.

And the Post:

One of the hoariest debates in Washington concerns the Law of the Sea Convention, a pact the United States helped to write 30 years ago and then refused to ratify - initially because President Ronald Reagan was opposed. Mr. Reagan's objections to the treaty's regulation of seabed mining were addressed when the treaty was renegotiated in 1994, but still the Senate refused to ratify, succumbing to alarmist conservative rhetoric about "global government." For most of his tenure, President Bush has deferred to ideologues in his administration who object to virtually all treaties. But that posturing is threatening to severely damage U.S. economic and security interests. Mr. Bush now favors the treaty, which will be voted on today by the Foreign Relations Committee. We hope the committee and the full Senate will approve it.

By now the array of treaty supporters is vast, ranging from environmentalists to oil, fishing and shipping companies to the U.S. military - not to mention most previous Democratic and Republican secretaries of state, including Mr. Reagan's stalwart, George P. Shultz. One reason is the U.S. interest in undersea territories in the warming Arctic that could contain billions of barrels of oil, among other resources, as well as newly opening sea lanes. Russia, Denmark and Canada are making bold claims to Arctic territories - claims that will be adjudicated by an international tribunal. Without joining the treaty, the United States can neither win recognition for its own potential claims to hundreds of thousands of square miles of territory off the coast of Alaska nor directly contest those of others.

Senators who would injure U.S. interests on such a scale to ward off world government are being cheered on by a handful of conservative think tanks and law professors who advance alarming-sounding but improbable claims. Perhaps the most notable of these is that ratification would hamstring the administration's Proliferation Security Initiative, which is aimed at stopping traffic in weapons of mass destruction by, among other means, intercepting ships. Some argue that international courts would be empowered to decide whether the Navy could seize contraband centrifuges. But the treaty contains an exception for military activity, and the United States can opt out of provisions that might give jurisdiction to courts. The members of the Joint Chiefs of Staff have concluded that ratification would strengthen the PSI.

A decade or two ago, the United States could afford to indulge its more irrational fears about one-worldism. But the price is rising steadily. The Senate needs to promptly ratify the Law of the Sea treaty to protect concrete and purely American economic and security interests.

New Issue: International Community Law Review

The latest issue of the International Community Law Review (Vol. 9, no. 3, October 2007) is out. Contents include:

  • Phoebe N. Okowa, Natural Resources in Situations of Armed Conflict: Is there a Coherent Framework for Protection?
  • Eriika Melkas, Equitable as Equal: The Kyoto Protocol Project Based Flexibility Mechanisms in an Unequal World
  • Madhav Khosla, The TWAIL Discourse: The Emergence of a New Phase
  • Stan Starygin, The Munich Appeasement and the Covenant of the League of Nations Legal Analysis

Tuesday, October 30, 2007

Workshop: Schneiderman on "Investment Rules, Irreversibility, and the Difficulties of Democratic Resistance"

David Schneiderman (Georgetown Univ. - Law) will give a talk today at the Georgetown University Law Center Faculty Workshop on "Investment Rules, Irreversibility, and the Difficulties of Democratic Resistance."

Workshop: McMahan on "The Morality of War and the Law of War"

Jeff McMahan (Rutgers Univ., New Brunswick - Philosophy) will give a talk today at the University of Pennsylvania Law School Institute for Law and Philosophy on ""The Morality of War and the Law of War."

Krisch: The Open Architecture of European Human Rights Law

Nico Krisch (LSE - Law) has posted The Open Architecture of European Human Rights Law. Here's the abstract:
The evolution of the European human rights regime is often described in constitutionalist terms: as the move towards an integrated order with the European Convention of Human Rights as its "constitutional instrument" at the top. In this article, I seek to show that this description is misguided and that the regime is better regarded as pluralist - as characterised by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The emergence and workings of this pluralist order are traced through the interaction of the European Court of Human Rights with domestic courts in Spain, France, the European Union and the United Kingdom. All these cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in day-to-day practice. I begin to identify factors that have led to this convergence and conclude that central characteristics of pluralism - incrementalism and the openness of ultimate authority - seem to have contributed to the generally smooth evolution of the European human rights regime in a significant way. This finding suggests a broader appeal of pluralist models as alternatives to constitutionalism in the construction of postnational authority and law.

Monday, October 29, 2007

Morgan: The Aesthetics of International Law

Ed Morgan (Univ. of Toronto - Law) has published The Aesthetics of International Law (Univ. of Toronto Press 2007). Here's the abstract:

International law is a fundamentally modern phenomenon. Tracing its roots to the skeletal nineteenth-century pronouncements of the ‘law of nations,’ the discipline took shape in the elaborate treaty structures of the post-First World War era and in the institutions and tribunals of the post-Second World War period. International law as scholars know and study it today is a product of modernism.

In The Aesthetics of International Law, Ed Morgan engages in a literary parsing of international legal texts. In order to demonstrate how modernist aesthetics are imbued in these types of legal narratives, Morgan makes a direct comparison between international legal documents and modern (as well as some immediately pre- and post-modern) literary texts. He demonstrates how the same intellectual currents that flow through the works of authors ranging from Edgar Allen Poe to James Joyce to Vladimir Nabokov, are also present in legal doctrines ranging from the law of war to international commercial disputes to human rights.

By providing a comparative, interdisciplinary account of the modern phenomenon, this work seeks to highlight the ways in which judges, lawyers, and state representatives artfully exploit the narratives of international law. It demonstrates that just as modernist literature developed complex narrative techniques as a way of dealing with the human condition, modern international law has developed parallel argumentative techniques as a way of dealing with international political conditions.

Noyes, Dickinson, & Janis: International Law Stories

John E. Noyes (California Western School of Law), Laura A. Dickinson (Univ. of Connecticut - Law), & Mark W. Janis (Univ. of Connecticut - Law) have published International Law Stories (Foundation Press 2007). Contents include:
  • Theodor Meron & Jean Galbraith, Nuremberg and Its Legacy
  • Harold Hongju Koh, Filártiga v. Peña-Irala: Judicial Internalization into Domestic Law of the Customary International Law Norm Against Torture
  • Claudio Grossman, The Velásquez Rodríguez Case: The Development of the Inter-American Human Rights System
  • David Seymour & Jennifer Tooze, The Soering Case: The Long Reach of the European Convention on Human Rights
  • Carlos M. Vázquez, Foster v. Neilson and United States v. Percheman: Judicial Enforcement of Treaties
  • William S. Dodge, The Paquette Habana: Customary International Law as Part of Our Law
  • Mark W. Janis, Missouri v. Holland: Birds, Wars, and Rights
  • Oona A. Hathaway, Hamdan v. Rumsfeld: Domestic Enforcement of International Law
  • John E. Noyes, The Caroline: International Law Limits on Resort to Force
  • David J. Bederman, The Reparation for Injuries Case: The Law of Nations is Transformed into International Law
  • Mary Ellen O'Connell, The Nicaragua Case: Preserving World Peace and the World Court
  • Bruno Simma & Carsten Hoppe, The LaGrand Case: A Story of Many Miscommunications
  • Laura A. Dickinson, Abu Ghraib: The Battle Over Institutional Culture and Respect for International Law within the United States

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 22, no. 10, October 2007) is out.

Workshop: Kronke & Burman on Transnational Commercial Law

Herbert Kronke (Secretary-General, UNIDROIT & Univ. of Heidelberg - Law) & Harold Burman (Office of the Legal Adviser, U.S. Department of State) will give talks today at the Duke Law School Center for International & Comparative Law on "UNIDROIT's Cape Town Treaty System - A Modern Revolution? International Interests in Mobile Equipment in the Global Economy" and "Why Unify Transnational Commercial Law? Two Perspectives."

New Issue: International Tax Journal

The latest issue of the International Tax Journal (Vol. 33, no. 5, September-October 2007) is out. Contents include:
  • James G.S. Yang, Shifei Chung, & Beixin Lin, New Tax Rules on Foreign Tax Credit and Foreign Housing Cost Exclusion
  • Thomas M. Zollo, Jahn Kvalseth, Douglas Zuvich, & Amy Tao, Chinese Procurement Under the New Enterprise Income Tax Law
  • Agnes W.Y. Lo & Raymond M.K. Wong, Tax Compliance and Audit Adjustment - An Investigation of the Transfer Pricing Methodologies

Sunday, October 28, 2007

Symposium: The New Face of Armed Conflict: Enemy Combatants After Hamdan v. Rumsfeld

The latest issue of the George Washington Law Review (Vol. 75, nos. 5-6, August 2007) contains a symposium on The New Face of Armed Conflict: Enemy Combatants After Hamdan v. Rumsfeld. It can be downloaded here. Contents include:
  • Symposium: The New Face of Armed Conflict: Enemy Combatants After Hamdan v. Rumsfeld
    • Gregory E. Maggs, Foreword
    • John B. Bellinger, III, Transcript of Remarks
    • Stephen A. Saltzburg, A Different War: Ten Key Questions About the War on Terror
    • Ingrid Detter, The Law of War and Illegal Combatants
    • Sean D. Murphy, Evolving Geneva Convention Paradigms in the "War on Terrorism": Applying the Core Rules to the Release of Persons Deemed "Unprivileged Combatants"
    • Mark A. Drumbl, The Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law
    • Leila Nadya Sadat, Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror
    • Robert M. Chesney, State Secrets and the Limits of National Security Litigation
    • Margaret L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition and the Rule of Law
    • Michael German, Trying Enemy Combatants in Civilian Courts

Ruger: Normative Foundations of Global Health Law

Jennifer Prah Ruger (Yale - Medicine) has posted Normative Foundations of Global Health Law (Georgetown Law Journal, forthcoming). Here's the abstract:

This Essay offers a normative theory of global health law. It builds on a theory of health and social justice I have long been developing and extends this theory in evaluating the role of international law in health. This theory takes human flourishing as the end goal of a global society and proposes that global health law be examined in terms of an ethical demand for health equity. This ethical demand will likely require legal instruments for realization, but it will also require individuals, states, and nonstate actors to internalize public ethical norms in support of global health goals. This Essay also argues that global health law should be examined in the contexts of international relations and global public policy and that law and policy should be linked at the global and domestic levels. Philosophical underpinnings of global health law cannot be studied separately from other global and domestic tools to reach global health equity.

This Essay comprises three parts. Part I offers normative foundations for the future of global health law and presents a theory of global health equity. Part II analyzes the role of global health law in achieving health equity, examines the effectiveness and limits of international health law, and considers the conditions necessary for the effectiveness of global health law. Part III offers an analysis of global health law vis-à-vis domestic health law and policy. The Essay concludes by arguing that solutions to global health disparities and externalities require more than international treaties, conventions, and recommendations. They require domestic health policy, law, and institutional reforms establishing sustainable, government-sponsored health systems, including universal health insurance and public-health and health-care infrastructures. Thus, the success and future of global heath law depend as much on domestic health policy and law as they do on international health law itself.