Sixth Committee: Week in Review

The Sixth Committee of the UN General Assembly continued its discussion this past week of the Annual Report of the International Law Commission. Here are the UN press releases describing the week's meetings:

November 6, 2007 - LEGAL COMMITTEE HEARS FINAL COMMENTS ON EXTRADITION OR PROSECUTION, SHARED NATURAL RESOURCES, RESERVATIONS TO TREATIES

November 5, 2007 - LEGAL COMMITTEE HEARS CALL FOR LAW COMMISSION STUDY ON REASONS WHY COUNTRIES REFUSE EXTRADITION REQUESTS

Brölmann: The Institutional Veil in Public International Law

Catherine Brölmann (Univ. of Amsterdam - Law) has published The Institutional Veil in Public International Law: International Organisations and the Law of Treaties (Hart Publishing 2007). Here's the abstract:

This book deals with the nature of international organisations and the tension between their legal nature and the system of classic, state-based international law. This tension is important in theory and practice, particularly when organisations are brought under the rule of international law and have to be conceptualised as legal subjects, for example in the context of accountability.

The position of organisations is complicated by what the author terms 'the institutional veil', comparable to the corporate veil found in corporate law. The book focuses on the law of treaties, as this pre-eminently 'horizontal' branch of international law brings out the problem particularly clearly. The first part of the book addresses the legal phenomenon of international organisations, their legal features as independent concepts, the history of international organisations and of legal thought in respect of them, and the development of contemporary law on international organisations. The second part deals with the practice of international organisations and treaty-making. It discusses treaty-making practice within organisations, judicial practice in interpretation of organisations' constitutive treaties, and the practice of treaty-making by organisations. The third and final part analyses the process by which international organisations have been brought under the rule of the written law of treaties, offering a practical application of the conceptual framework as previously set out. Part three is at the same time an analytic overview of the drafting history of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. This is a profound and penetrating examination of the character of international organisations and their place in international law, and will be an important source for anyone interested in the future role of organisations in the international legal system.

New Volume: Recueil des Cours

Volume 320 (2006) of the Recueil des Cours, Collected Courses of the Hague Academy of International Law (Martinus Nijhoff Publishers 2007) is out. Contents include:

• Gérald Goldstein (l'Université de Montréal - Law), La cohabitation hors mariage en droit international privé

New Volume: Max Planck Yearbook of United Nations Law

The latest volume of the Max Planck Yearbook of United Nations Law (Vol. 11, 2007) is out. Contents include:

• Hennie Strydom, The Non-Aligned Movement and the Reform of International Relations
• Michael Wood, The International Seabed Authority: Fifth to Twelfth Sessions (1999-2006)
• Andreas Zimmermann, The Second Lebanon War: Jus ad bellum, jus in bello and the Issue of Proportionality
• Alexander Orakhelashvili, The Acts of the Security Council: Meaning and Standards of Review
• Stefanie Schmahl, The United Nations Facing the Challenges of the "Information Society"
• Dieter Kugelmann, The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity
• Nele Matz-Lück, The Eighth Conference of the Parties to the Convention on Biological Diversity: Summary and Analysis
• Edwina Thompson, Misplaced Blame: Islam, Terrorism and the Origins of Hawala
• Focus: How to speed up Implementation of the Right to Adequate Food at the International Level
• Christian Courtis, The Right to Food as a Justiciable Right: Challenges and Strategies
• Sigrun Skogly, Right to Adequate Food: National Implementation and Extraterritorial Obligations
• Fons Coomans, Application of the International Covenant on Economic, Social and Cultural Rights in the Framework of International Organisations
• Jennie Jonsén & Sven Söllner, The "Breakthrough" of the Right to Food: The Meaning of General Comment No. 12 and the Voluntary Guidelines for the Interpretation of the Human Right to Food

Heinsch: Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda

Robert Heinsch (German Red Cross) has published Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda (Berliner Wissenschafts-Verlag 2007). Here's the abstract:

Die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda haben in den ersten zehn Jahren ihrer Existenz durch ihre Rechtsprechung die Entwicklung des Völkerstrafrechts maßgeblich vorangetrieben. Die Arbeit präsentiert nicht nur eine systematisierte Darstellung der Rechtsprechung der beiden Tribunale im Bereich des humanitären Völkerrechts, sondern beschreibt anhand repräsentativer Beispiele, wie diese sich auf den Rechtssetzungsprozess im Völkerstrafrecht ausgewirkt hat. Untersucht wird in diesem Zusammenhang die Übernahme von Tribunal-Rechtsprechung durch internationale Verträge wie dem Römischen Statut für einen Internationalen Strafgerichtshof, durch nationale Gesetze sowie durch nationale Rechtsprechung. Abschließend wird anhand der gefundenen Ergebnisse die rechtsquellentheoretische Frage erörtert, inwiefern internationale Gerichtsentscheidungen als vollwertige Rechtsquelle im Völkerrecht angesehen werden können.

Die Arbeit richtet sich an Akademiker, Studierende und Praktiker, die einen Überblick über die ersten Jahre der Tribunal-Rechtsprechung gewinnen wollen, gleichzeitig aber auch an diejenigen mit Interesse an der Frage, ob internationale Strafgerichte als "Rechtssetzer des Völkerstrafrechts" zu bezeichnen sind.

Barrett: Why Cooperate? The Incentive to Supply Global Public Goods

Scott Barrett (Johns Hopkins Univ. - School of Advanced International Studies) has published Why Cooperate? The Incentive to Supply Global Public Goods (Oxford Univ. Press 2007). Here's the abstract:

Climate change, nuclear proliferation, and the threat of a global pandemic have the potential to impact each of our lives. Preventing these threats poses a serious global challenge, but ignoring them could have disastrous consequences. How do we engineer institutions to change incentives so that these global public goods are provided?

Scott Barrett provides a thought provoking and accessible introduction to the issues surrounding the provision of global public goods. Using a variety of examples to illustrate past successes and failures, he shows how international cooperation, institutional design, and the clever use of incentives can work together to ensure the effective delivery of global public goods.

Reichman & Dreyfuss: Harmonization Without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty

Jerome H. Reichman (Duke Univ. - Law) & Rochelle Cooper Dreyfuss (New York Univ. - Law) have published Harmonization without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty (Duke Law Journal, Vol. 57, no. 1, p. 85, October 2007). Here's the abstract:

In this Article, we contend that the World Intellectual Property Organization's proposed Substantive Patent Law Treaty (SPLT) is premature. Developing countries are struggling to adjust to the heightened standards of intellectual property protection required by the TRIPS Agreement of 1994. With TRIPS, at least, these countries obtained side payments (in the form of trade concessions) to offset the rising costs of knowledge products. A free-standing instrument, such as the SPLT, would shrink the remaining flexibilities in the TRIPS Agreement with no side payments and no concessions to the catch-up strategies of developing countries at different stages of technological advancement.

More controversially, we argue that a deep harmonization would boomerang against even its developed country promoters by creating more problems than it would solve. There is no vision of a properly functioning patent system for the developed world that commands even the appearance of a consensus. The evidence shows, instead, that the worldwide intellectual property system has entered a brave new scientific epoch, in which experts have only tentative, divergent ideas about how best to treat a daunting array of new technologies. The proposals for reconciling the needs of different sectors, such as information technology and biotechnology, pose hard, unresolved issues at a time when the costs of litigation are rising at the expense of profits from innovation. These difficulties are compounded by the tendency of universities to push patenting up stream, generating new rights to core methodologies and research tools. As new approaches to new technologies emerge in different jurisdictions, there is a need to gather empirical evidence to determine which, if any, of these still experimental solutions are preferable over time.

Our argument need not foreclose other less intrusive options and measures surveyed in the Article that can reduce the costs of delaying harmonization. However, the international community should not rush to freeze legal obligations regarding the protection of intellectual property. It should wait until economists and policymakers better understand the dynamics of innovation and the role that patent rights play in promoting progress and until there are mechanisms in place to keep international obligations responsive to developments in science, technology, and the organization of the creative community.

Keitner: International and Foreign Law Sources: Siren Song for U.S. Judges?

Chimène I. Keitner (Univ. of California - Hastings College of the Law) has posted International and Foreign Law Sources: Siren Song for U.S. Judges?. Here's the abstract:

In this issue brief distributed by the American Constitution Society, Professor Keitner addresses the growing debate over the use of foreign and international law sources by U.S. judges engaged in constitutional adjudication. She begins by summarizing the attitudes towards international law sources exhibited by individual justices in the American legal system, noting that "one's opinion about the potential relevance of foreign and international law sources . . . depends in no small part on one's view of the role of judges in a constitutional democracy." Professor Keitner then examines the public opposition to the citation of foreign law sources in Lawrence v. Texas and Roper v. Simmons, which manifested itself in proposed legislation that would constrain how judges could interpret cases and prohibit the consideration of international law sources. Finally, Professor Keitner identifies three principled objections to the use of foreign and international law sources in constitutional adjudication (categorizing them as as institutionalist, instrumentalist, and inherentist objections), and responds to each in turn. Professor Keitner concludes, "Participating in international judicial dialogue should be viewed as a means of strengthening, not weakening, our commitment to the democratic values embodied in the U.S. Constitution."

Bodansky: International Sectoral Agreements in a Post-2012 Climate Framework

Daniel Bodansky (Univ. of Georgia - Law) has posted International Sectoral Agreements in a Post-2012 Climate Framework. Here's the abstract:

This Pew Center on Global Climate Change Working Paper examines international sectoral agreements as one element of post-2012 climate change framework. It is part of a Pew Center series expanding on key recommendations of the Pew Center's Climate Change Dialogue at Pocantico. The paper explores different types of international sectoral approaches, the potential benefits of sectoral agreements, factors that make a sector more or less well suited for a sectoral agreement, and key design variables that must be addressed in developing international sectoral agreements.

Workshop: Hansmann on "Globalizing Commercial Litigation"

Henry B. Hansmann (Yale - Law) will give a talk today at the Fordham Law School Faculty Workshop on "Globalizing Commercial Litigation."

Workshop: Kreder on "Towards an International Tribunal for Nazi-Looted Art Disputes"

Jennifer Kreder (Northern Kentucky Univ. - Law) will give a talk today at the Northern Kentucky University Salmon P. Chase College of Law on "Towards an International Tribunal for Nazi-Looted Art Disputes."

New Issue: Journal of International Criminal Justice

The latest issue of the Journal of International Criminal Justice (Vol. 5, no. 5, November 2007) is out. Contents include:

• James G. Stewart, The UN Commission of Inquiry on Lebanon: A Legal Appraisal
• Symposium: The Special Tribunal for Lebanon - A Cripple from Birth?
• James Cockayne, Foreword
• Marieke Wierda, Habib Nassar, and Lynn Maalouf, Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon
• Choucri Sader, A Lebanese Perspective on the Special Tribunal for Lebanon: Hopes and Disillusions
• Bardo Fassbender, Reflections on the International Legality of the Special Tribunal for Lebanon
• Cécile Aptel, Some Innovations in the Statute of the Special Tribunal for Lebanon
• Nidal Nabil Jurdi, The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon
• Marko Milanovic, An Odd Couple: Domestic Crimes and International Responsibility in the Special Tribunal for Lebanon
• Bert Swart, Cooperation Challenges for the Special Tribunal for Lebanon
• Paola Gaeta, To Be (Present) or Not To Be (Present): Trials In Absentia before the Special Tribunal for Lebanon
• Fergal Gaynor & Barbara Goy, Current Developments at the Ad Hoc International Criminal Tribunals

New Issue: Columbia Human Rights Law Review

The latest issue of the Columbia Human Rights Law Review (Vol. 38, no. 3, Spring 2007) is out. Contents include:

• 40th Anniversary Special Issue - Dedicated to Columbia University Professor Louis Henkin
• Foreword: Human Rights and the "War on Terror"
• The Future of Human Rights Law: A Tribute to Louis Henkin
• Justice Ruth Bader Ginsburg, Letter honoring Louis Henkin
• Lee Bollinger, Letter honoring Louis Henkin
• Judge Rosemary Barkett, Louis Henkin and the Education of the Federal Judiciary
• Juan Méndez, Lou Henkin, Transitional Justice, and the Prevention of Genocide
• Harold Hongju Koh, The Future of Lou Henkin's Human Rights Movement
• The Legacy of Louis Henkin: Human Rights in the "Age of Terror" - An Interview with Sarah H. Cleveland
• George P. Fletcher, The Law of War and Its Pathologies
• Deborah Pearlstein, The Constitution and Executive Competence in the Post-Cold War World
• Naureen Shah, Knocking on the Torturer's Door: Confronting International Complicity in the U.S. Rendition Program

Lecture: Meron on "Does International Criminal Justice Work?"

Today, Judge Theodor Meron (International Criminal Tribunal for the Former Yugoslavia) will give the 2007 Alec Roche Annual Lecture in Public International Law at the University of Oxford. The lecture's title is "Does International Criminal Justice Work?" A list of previous Roche lecturers can be found here.

New Issue: Vanderbilt Journal of Transnational Law

The latest issue of the Vanderbilt Journal of Transnational Law (Vol. 40, no. 3, May 2007) is out. Contents include:

• James D. Fry, Coercion, Causation, and the Fictional Elements of Indirect State Responsibility
• Monica Hakimi, To Condone or Condemn? Regional Enforcement Actions in the Absence of Security Council Authorization
• Sandeep Gopalan, India-Pakistan Relations: Legalization and Agreement Design
• Edward T. Canuel, The Legal and Social Implications of Insolvent Cross-Border Real Estate Developers: Reviewing the U.S. and Canadian Commercial Real Estate Markets
• Bruce E. Aronson, Elite Law Firm Mergers and Reputational Competition: Is Bigger Really Better? An International Comparison

Lecture: Heller on "A Poisoned Chalice: The Substantive and Procedural Defects of the Iraqi High Tribunal"

A week from today, on Tuesday, November 13, 2007, Kevin Jon Heller (Univ. of Auckland - Law) will give a lecture on "A Poisoned Chalice: The Substantive and Procedural Defects of the Iraqi High Tribunal" as part of the LSE International Humanitarian Law Project Lecture Series. The talk "will explore the problems with the trial of Saddam Hussein through an examination of the IHT's unstable mix of international and domestic criminal law." Professor Charles Garraway, who was involved in the drafting of the IHT statute, will be the respondent. For those unable to attend, a transcript and video of the lecture will be available on the IHL Project website.

New Issue: New York University Journal of International Law and Politics

The latest issue of the New York University Journal of International Law and Politics (Vol. 39, no. 4, Summer 2007) is out. Contents include:

• Cesare P.R. Romano, The Shift from the Consensual to the Compulsory Paradigm in International Adjudication: Elements for a Theory of Consent
• Ernestine E. Meijer, The International Institutions of the Clean Development Mechanism Brought Before National Courts: Limiting Jurisdictional Immunity to Achieve Access to Justice
• Symposium: Existing and Emerging Legal Approaches to Nuclear Weapons in the Twenty-First Century
• Nobuyasu Abe, Existing and Emerging Legal Approaches to Nuclear Counter-Proliferation in the Twenty-First Century
• Christopher A. Ford, The Nonproliferation Bestiary: A Typology and Analysis of Nonproliferation Regimes
• Jonathan Granoff, The Nuclear Nonproliferation Treaty and Its 2005 Review Conference: A Legal and Political Analysis
• David S. Jonas, The Comprehensive Nuclear Test Ban Treaty: Current Legal Status in the United States and the Implications of a Nuclear Test Explosion

Call for Papers: The Risks of International Law

The Leiden Journal of International Law has issued a call for papers for a special issue on "The Risks of International Law." Here's the call:

The Leiden Journal of International Law (LJIL) is now soliciting articles for a special issue of the LJIL to be dedicated to explorations of risk in international law and international legal theory. Led by the work of writers such as Ulrich Beck, Niklas Luhmann, Anthony Giddens and François Ewald, scholars across the humanities and social sciences have been engaged for the past few decades in increasingly prolific and divergent reflections upon the ways in which understandings of risk structure and inform contemporary experience and decision-making. In Issue 4 of Volume 21 of the LJIL (2008), the LJIL Editorial Board would like to bring together the work of a group of scholars working on such questions in relation to international law. How does international law project and traverse uncertainty and risk? How does international law structure risk-management and precautionary action? What are the implications for international law of the recent turn to risk in the area of security? What risks may be attendant upon international law's particular risk appetites and risk aversions? What are or may yet be international lawyers' distinctive contributions to contemporary "cultures" of risk? These are among the questions with which we anticipate contributors grappling with.

Contributors will be asked to prepare an article of approximately 10,000 words (including footnotes) for publication in the LJIL, consistent with the LJIL's Instructions for Contributors. Those interested in contributing are requested to respond to this Call for Papers by email to managing editor Douwe Sikkema (ljil@law.leidenuniv.nl) by 1 December 2007, attaching a 200-word abstract of the article you propose to contribute. We would then request full submissions by 1 April 2008. All contributions will be subject to peer review in accordance with the usual procedures of the LJIL. Please contact the LJIL Articles Editors with any questions: Fleur Johns (f.johns@usyd.edu.au) and/or Wouter Werner (w.werner@rechten.vu.nl).

Address by Wolfrum to Legal Advisers

Judge Rüdiger Wolfrum, President of the International Tribunal for the Law of the Sea, addressed the assembled Legal Advisers of the Ministries of Foreign Affairs at the United Nations last Monday. His speech is now available here.

Lecture: Wood on "The Role of International Law in Federal Courts"

Judge Diane Wood (U.S. Court of Appeals for the Seventh Circuit) will give a lecture today at the Duke Law School Center for International and Comparative Law on "The Role of International Law in Federal Courts."

Goldstein & Steinberg: Regulatory Shift: The Rise of Judicial Liberalization at the WTO

Judith Goldstein (Stanford - Political Science) & Richard H. Steinberg (UCLA - Law) have posted Regulatory Shift: The Rise of Judicial Liberalization at the WTO. Here's the abstract:

In the early years of the GATT/WTO regime, trade regulation occurred through a negotiated legislative process associated with trade rounds. Over the last fifteen years, however, the focus of GATT/WTO trade regulation has moved to the judicial process. GATT negotiations, reliant on reciprocity between big territories, non-reciprocity for developing countries, and the extension of Most Favored Nation status to all, created a regulatory system that substantially liberalized trade, but also enabled some powerful protectionist sectors to remain entrenched in industrialized countries. Since conclusion of the Uruguay Round, the decline in non-reciprocity for developing countries has catalyzed legislative gridlock at the GATT/WTO, reflected in the current Doha Round impasse. The failure of the Ministerial negotiating process has opened up space for public sector entrepreneurs - the Appellate Body - to push for regulatory change. The same divisions that have undermined trade talks have made it increasingly difficult for the membership to provide a check on judicial lawmaking. The result is that we are entering a period of "judicial liberalization" at the WTO, led by the Appellate Body.

Neumayer: Do Double Taxation Treaties Increase Foreign Direct Investment to Developing Countries?

Eric Neumayer (LSE - Geography & Environment) has posted Do Double Taxation Treaties Increase Foreign Direct Investment to Developing Countries? (Journal of Development Studies, Vol. 43, no. 8, p. 1495, 2007). Here's the abstract:

Developing countries invest time and other scarce resources to negotiate and conclude double taxation treaties (DTTs) with developed countries. They also accept a loss of tax revenue as such treaties typically favour residence-based over source-based taxation and developing countries are typically net capital importers. The incurred costs can only pay off if developing countries can expect to receive more foreign direct investment (FDI) in return. This is the first study to provide evidence that developing countries that have signed a DTT with the US or a higher number of DTTs with important capital exporters actually do receive more FDI from the US and in total. However, DTTs are only effective in the group of middle-, not low-income developing countries.

New Issue: Journal of World Investment and Trade

The latest issue of the Journal of World Investment & Trade (Vol. 8, no. 4, August 2007) is out. Contents include:

• Abba Kolo, Investor Protection vs Host State Regulatory Autonomy during Economic Crisis: Treatment of Capital Transfers and Restrictions under Modern Investment Treaties
• Valentina Vadi, Access to Essential Medicines & International Investment Law: The Road Ahead
• Amit M. Sachdeva, International Investment: A Developing Country Perspective
• Rudolf Adlung, The Contribution of Services Liberalization To Poverty Reduction: What Role for the GATS?
• Meir Perez Pugatch, Measuring the Strength of National Pharmaceutical Intellectual Property Regimes in Eight Countries: Using a Pharmaceutical IP Index to Benchmark India