Saturday, November 17, 2007

Fazio: The Harmonization of International Commercial Law

Silvia Fazio (Collyer Bristow LLP) has published The Harmonization of International Commercial Law (Kluwer Law International 2007). Here's the abstract:

The globalisation of markets has pushed static, territorially-bounded legal structures towards a more rapid and efficient adaptation to the globalised and regionalised reality. In addition, substantial modifications in the structure and activities of financial institutions have increased risks and the need for new regulatory responses. Efforts to harmonise commercial law within the global order have resulted in a fragmented and ad hoc process, constructed according to multiple different interests and in order to preserve public policies in the face of transnational challenges.

This book is the first to systematically analyse the current state of commercial law from a global perspective. The author seeks to both identify the reasons that are fostering the harmonisation process and to explain the ways in which it is developing. Among the relevant elements examined in this thorough analysis are the following:

  • how emerging countries are absorbing international standards (with a special case study of Brazil);
  • the impact of corporate activities on legal systems;
  • the role of the corporation in promoting the standardisation of laws;
  • issues of social responsibility and corporate accountability;
  • justifications for the regulation of the corporate world;
  • free trade vs. fair trade;
  • the impact of treaty reservations and different forms of treaty incorporation into national legal systems;
  • interaction between regional trade agreements and the WTO system;
  • how movements of capital are reflected in international initiatives as well as in regional legislation and regulation;
  • co-operation among national financial authorities;
  • the emerging new lex mercatoria; and
  • the role of professional associations such as the International Chamber of Commerce (ICC).

Resolutions of Ratification: Protocols to Tax Conventions with Denmark and Finland

On Friday, November 16, the Senate, by the requisite two-thirds vote of members present, agreed to the resolutions of advice and consent to ratification of 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) and 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 on May 31, 2006 (Treaty Doc. 109-18). The resolutions of ratification did not contain any reservations, understandings, or declarations. The Senate Foreign Relations Committee favorably reported the Protocols on October 31, following a hearing on July 17. The Committee submitted its reports on the Protocols last Wednesday, November 14.

SFRC: Reports on Pending Tax Treaties

On Wednesday, November 14, the Senate Foreign Relations Committee submitted its reports on the four tax treaties that were ordered favorably reported at the Committee's October 31 business meeting. The reports are:

WTO Panel Report: European Communities - Anti-dumping measure on farmed salmon from Norway

On Friday, a Panel established by the WTO's Dispute Settlement Body issued its Report on the case European Communities - Anti-dumping measure on farmed salmon from Norway (DS337). Norway brought the complaint. The full Report can be found here. An excerpt containing just the Panel's conclusions and recommendation can be found here. A summary of the case can be found here.

Friday, November 16, 2007

Colon & Knoll: Prejudgment Interest in International Arbitration

Jeffrey M. Colon (Fordham Univ. - Law) & Michael S. Knoll (Univ. of Pennsylvania - Law) have posted Prejudgment Interest in International Arbitration. Here's the abstract:
Tribunals in international arbitration are regularly asked by claimants to award prejudgment interest. Unless foreclosed by an agreement between the parties, there is widespread agreement prejudgment interest should put the claimant in the same position as it would have been had it not been injured by the respondent. However, there is little consensus how to calculate prejudgment interest in order to accomplish that purpose. In this Essay, we describe the proper method of calculating prejudgment interest based on sound financial principles. Using the paradigm that the respondent has forced the claimant to make an involuntary loan to the respondent, we argue that prejudgment interest should be computed using the respondent's borrowing rate. Furthermore, we argue that tribunals should use a series of short-term, floating interest rates rather than a single long-term rate at the commencement of the dispute in order to provide the parties with the proper incentive to settle their dispute. We also discuss how the calculations are different when the parties are individuals and closely held corporations as opposed to corporations and governments, and we address complications that arise when a tribunal calculates damages in one currency and makes a final award in another currency.

Thursday, November 15, 2007

New Issue: International Review of the Red Cross

The latest issue of the International Review of the Red Cross (Vol. 89, no. 866, June 2007) is out. The theme is Catastrophic Events. Contents include:

  • Toni Pfanner, Editorial
  • Catastrophic Events
    • Interview with Maurits R. Jochems
    • David P. Fidler, Governing catastrophes: security, health and humanitarian assistance
    • Wolf R. Dombrowsky, Lessons learned? Disasters, rapid change and globalization
    • Nobuko Margaret Kosuge, Prompt and utter destruction: the Nagasaki disaster and the initial medical relief
    • Anthea Sanyasi, Humanity amid conflict, terror and catastrophe: hypothetical but possible scenarios
    • Dominique Loye & Robin Coupland, Who will assist the victims of use of nuclear, radiological, biological or chemical weapons - and how
    • David Fisher, Domestic regulation of international humanitarian relief in disasters and armed conflict: a comparative analysis
  • Selected articles on international humanitarian law
    • Marko Milanovic, Lessons for human rights and humanitarian law in the war on terror: comparing Hamdan and the Israeli Targeted Killings case
    • Sharon Weill, The judicial arm of the occupation: the Israeli military courts in the occupied territories
  • Reports and documents
    • Morris Tidball-Binz, Managing the dead in catastrophes: guiding principles and practical recommendations for first responders
    • John B. Bellinger III & William J. Haynes II, A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law
    • Jean-Marie Henckaerts, Customary International Humanitarian Law: a response to US comments

Schmidt: The EU Campaign Against the Death Penalty

John R. Schmidt (U.S. Department of State) has published The EU Campaign Against the Death Penalty (Survival, Vol. 49, no. 4, p. 123, December 2007). Here's the abstract:
The EU campaign against the death penalty shows that the United States no longer enjoys a monopoly on moralising in international affairs. The architects of the EU, influenced by the US precedent and anxious to define what the EU was for, fastened on to the death penalty as a way to seize the moral high ground. The death-penalty campaign is not simply a target of opportunity but broadly consistent with an emerging EU moral consensus that renounces violence and seeks to resolve conflict through engagement and negotiation. This worldview, very different from the more hard-boiled US approach, has generated transatlantic frictions on issues ranging from the International Criminal Court to Iraq, and is likely to foreshadow even more.

New Issue: Revue de Droit International et de Droit Comparé

The latest issue of the Revue de Droit International et de Droit Comparé (Vol. 84, no. 3, 2007) is out. Contents include:
  • A. Humbert, DOCTRINE - L'attrait trompeur de la pluralité des juges internationaux: libres réflexions à partir de l'affaire du Liechtenstein devant la CEDH et la CIJ
  • G. De Pierpont, DOCTRINE - La codification en droit économique
  • Y. De Cordt, COMPTE RENDU - Le bicentenaire du Code de commerce

Wednesday, November 14, 2007

ICTY: Brammertz Nominated to Succeed Del Ponte

Yesterday, UN Secretary-General Ban Ki-Moon nominated Serge Brammertz to succeed Carla Del Ponte as the ICTY Prosecutor. Brammertz currently leads the United Nations International Independent Investigation Commission (the Hariri inquiry). His nomination to the ICTY post has been anticipated for months. Senior prosecutors in The Hague favored the appointment of Deputy Prosecutor David Tolbert and sent a letter to the Secretary-General contesting Brammertz's pending nomination. (See here and here.) Some prosecutors have apparently indicated that they would resign if Tolbert were not appointed. At stake is the nature of the ICTY's endgame. For the prosecutors, Brammertz's appointment indicates a clear prioritization on closing down the tribunal in accordance with the Security Council's "completion strategy." Tolbert's appointment, on the other hand, would have signaled an emphasis on properly completing the tribunal's mission. Secretary-General Ban also announced yesterday his nomination of Daniel Bellemare, a Canadian prosecutor, to replace Brammertz. The Security Council will almost certainly approve both nominations.

New Issue: Netherlands Quarterly of Human Rights

The latest issue of the Netherlands Quarterly of Human Rights (Vol. 25, no. 3, 2007) is out. Contents include:
  • Jona Razzaque & Manisuli Ssenyonjo, Protection of Traditional Knowledge and Human Rights Obligations: The Status of Discussion in International Organisations
  • Laura van Waas, The Children of Irregular Migrants: A Stateless Generation?
  • Siobhán McInerney-Lankford, Human Rights and Development: Some Institutional Perspectives

Tuesday, November 13, 2007

Update: Exxon Mobil Corp. v. John Doe I

In June 2001, plaintiffs, eleven Indonesian villagers, sued Exxon Mobil and others under the Alien Tort Statute, the Torture Victim Protection Act, and state tort law in the U.S. District Court for the District of Columbia. The complaint (as amended in January 2006, here) alleged that the defendants hired security forces, comprised exclusively of Indonesian military personnel, to guard a natural gas facility in Aceh. These forces, it is alleged, committed murder, torture, sexual assault, battery, false imprisonment, and other torts. The defendants, allegedly, hired, armed, and controlled these forces despite knowing that the Indonesian military committed human rights abuses in the past. The defendants moved to dismiss the complaint on the basis of the political question doctrine. The district court thereupon requested the views of the United States "as to whether adjudication of this case at this time would impact adversely on the interests of the United States, and, if so, the nature and significance of that impact." In response, the Legal Adviser of the U.S. Department of State submitted a Statement of Interest that concluded: "the Department of State believes that adjudication of this lawsuit at this time would in fact risk a potentially serious adverse impact on significant interests of the United States, including interests related directly to the on-going struggle against international terrorism." The Statement of Interest included a letter from the Indonesian Ambassador to the United States to the U.S. Deputy Secretary of State concerning the litigation. On October 14, 2005, the district court granted the defendants' motion in part and denied it in part. The district court dismissed the Alien Tort Statute and Torture Victim Protection Act claims for failure to state a claim and for lack of subject matter jurisdiction. The court, however, denied the motion insofar as it applied to the plaintiffs' state law tort claims, finding that these claims did not present non-justiciable political questions, as the court could focus discovery and litigation on these claims in a manner that would mitigate the concerns raised by the State Department and the Government of Indonesia. Exxon Mobil filed an interlocutory appeal. On January 12, 2007, a panel of the U.S. Court of Appeals for the D.C. Circuit (Judges Sentelle and Edwards for the majority; Judge Kavanaugh dissenting) found that the it did not have jurisdiction over the appeal and in the alternative, treating the appeal as a writ of mandamus, that the appellants had not established a "clear and indisputable" right to to have the plaintiffs' claims dismissed. On July 20, Exxon Mobil filed a petition for a writ of certiorari. (Brief in opposition here; petitioners' reply here.) The question presented by the petition is:
Where a lawsuit challenges the activities of a foreign government, and the Executive warns that the litigation itself, and not just the effects of a final judgment, would risk a potentially serious adverse impact on serious foreign policy interests of the United States, does the collateral order doctrine permit immediate appeal of a district court's denial of a motion to dismiss under the political question doctrine?
Today, the Supreme Court invited the Solicitor General to file a brief expressing the views of the United States on the petition.

New Issue: Revue Générale de Droit International Public

The latest issue of the Revue Générale de Droit International Public (Vol. 111, no. 3, 2007) is out. Contents include:
  • Olivier Corten, La licéité douteuse de l'action militaire de l'Ethiopie en Somalie et ses implications sur l'argument de l'«intervention consentie»
  • Amna Guellali, Lex specialis, droit international humanitaire et droits de l'homme: leur interaction dans les nouveaux conflits armés
  • Robert Kolb, La désuétude en droit international public
  • Guillaume Le Floch, La désuétude en droit international public
  • Aïda Azar, Notes - Le tribunal spécial pour le Liban: une expérience originale?
  • Thierry Garcia & Anne-Claire Chaumont, Notes - Le processus d'accession à l'Organisation mondiale du commerce (OMC): logique relationnelle contre logique institutionnelle?

Workshop: Yoo on "Failed States as Failed Commitments"

John Yoo (Univ. of California, Berkeley - Law) will give a talk today at the Northwestern University School of Law International Law Colloquium on "Failed States as Failed Commitments."

Burke-White & von Staden: Investment Protection in Extraordinary Times

William W. Burke-White (Univ. of Pennsylvania - Law) & Andreas von Staden (Princeton - Woodrow Wilson School of Public and International Affairs) have posted Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties (Virginia Journal of International Law, forthcoming). Here's the abstract:
When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such BITs, however, contain heretofore under-studied clauses that preclude liability for state actions taken in response to exceptional circumstances. These non-precluded measures (NPM) clauses effectively transfer the risk of and costs associated with state action in exceptional circumstances from the host-states of international investments to the investors. In two recent cases brought against Argentina in response to the Argentine financial crisis, ICSID tribunals have interpreted the NPM clause in the U.S.-Argentina BIT in radically different ways, with one tribunal holding Argentina liable and the other excusing Argentina from compensating investors. This article provides the first detailed study of NPM clauses in international investment law. It argues that NPM clauses are, in fact, a widespread element of the international law of foreign investment. To guide states, investors, and arbitral tribunals, the article offers a framework for the interpretation of NPM clauses, based on the practice of key states including the U.S., Germany, and India. In so doing, the article imports the margin of appreciation doctrine from European human rights law into international investment arbitration as a mechanism for determining the scope of deference to be accorded to critical state policies by ad hoc arbitral tribunals. More generally, the article argues that the risk-allocation function performed by NPM clauses is of considerable significance to the depth of international legal cooperation, the response of states to international crises, and the flow of international investments.

Rogers: The Arrival of the Have-Nots in International Arbitration

Catherine A. Rogers (Bocconi Univ. - Institute of Comparative Law & Louisiana State Univ. - Law) has posted The Arrival of the Have-Nots in International Arbitration. Here's the abstract:

Much has been written about the have-nots in domestic litigation and domestic arbitration, with an apparent assumption that their fate was mainly a domestic affair. In recent years, however, internet commerce has brought consumers to the international market, an increasingly globalized workforce has generated a class of international employees, and the link between international trade and human rights has revealed a host of victims. The arrival of these "have-nots" in international arbitration means that previously latent questions about international arbitration's integrity as a system and role as a mechanism for transnational regulatory governance have been brought to the fore.

Using experiences in the domestic and the investment arbitration contexts as a backdrop for comparison, I examine the treatment of have-nots in international arbitration. In domestic and investment arbitration, claims by have-nots have revealed and exacerbated structural weaknesses in those systems, as well as unanticipated shifts from sovereign governments to private arbitrators. In contrast to these experiences, before these new parties are fully integrated, the international arbitration system has an opportunity to engage in deliberative construction in order to ensure that the system is prepared to facilitate fair adjudication of their claims and to provide an effective mechanism for transnational regulation.

The structural features of the system and the professional ethos of international arbitration's caretakers endow it with the capacity to serve as a venue for mediating between conflicting national public policies and facilitating international governance with respect to those regulatory interests that are designed to protect the interests of the have-nots. To fully realize these goals, and more importantly to avoid the pitfalls that domestic and investment arbitration encountered with claims by have-nots, I conclude that the international arbitration community must necessarily undertake active efforts to accommodate these new types of claims by, among other things, training arbitrators and developing specialized procedures specifically adopted to these new types of claims.

Monday, November 12, 2007

Call for Papers: Transnational Corporate Responsibility for the 21st Century

The University of Oslo Faculty of Law and the George Washington University Law School have issued a call for papers for a conference on "Transnational Corporate Responsibility for the 21st Century," to be held at the George Washington University Law School, April 7-8, 2008. Here's the call:

The conference will explore legal issues associated with the responsibility of transnational corporations in specific areas that are likely to continue to be of significance throughout the 21st Century. Five consecutive panels will cover the following topics:

  • Corporations and International Environmental Responsibility
  • Litigating Transnational Corporate Responsibility
  • Transnational Corporate Responsibility and Human Rights
  • The Responsibility of Transnational Financial Institutions
  • Transnational Codes of Conduct

If you wish to participate with a paper on one of the panels, please submit a five hundred word (or fewer) abstract by email to Susan L. Karamanian, Associate Dean for International and Comparative Legal Studies, The George Washington University Law School, at no later than 6 p.m. on Thursday, November 15, 2007. Two papers will be selected for each panel. The final papers must be submitted by March 28, 2008 and should be of publishable quality. We are working with the George Washington International Law Review with hopes it will publish the papers.

All selected paper presenters are expected to participate in the conference. The conference organizers will pay for coach airfare and hotel expenses for selected panelists.

Please contact Ms. Karamanian by email or at +1 202.994.1210 or Mr. Ole Kristian Fauchald at or +47 2285.9438 if you have any questions.

Call for Papers: Fostering a Scholarly Network: International Law and Democratic Theory

The Australian & New Zealand Society of International Law, the American Society of International Law, the Canadian Council on International Law, and the Japan Society of International Law have issued a call for papers for a conference on "Fostering a Scholarly Network: International Law and Democratic Theory," to be held in September 2008 at the University of Alberta. Here's the call:

The sponsoring organizations of "Fostering a Scholarly Network: International Law and Democratic Theory" invite submissions for a collaborative exchange and discussion of papers at an event to take place in September 2008 in Canada at the University of Alberta in Edmonton, Alberta. As is detailed below, the conference will explore the relationship between democracy and international law, including such topics as the adherence by democratic states to international law and the democratic credentials of international organizations and the law they develop and enforce.

The event is taking place during CCIL's 35th anniversary year. It is the second event on the theme of international law and democratic theory undertaken by the four societies. The first took place in June 2006 in Wellington, New Zealand. Papers from that event have been published in (2007) 38:2 Victoria University of Wellington Law Review. Four papers from each sponsoring society will be selected by a Steering Committee comprising members from the four societies. Participants will be notified in January 2008. The conference working language will be English.

All proposals should include a project description and the applicant’s curriculum vitae. All proposals selected for Steering Committee review should be in English with project descriptions not to exceed 500 words. Preference will be given to applicants in the early stages of their careers and who have not had opportunities to present at an international conference. Successful CCIL candidates will be expected to be members of the CCIL by the time of the conference. Additional preference will be given to innovative and cutting edge proposals related to International Law and Democratic Theory. A list of topic examples follows the theme statement. The submission deadline is December 14, 2007.

Submissions should cover work that was not previously published. Discussions are underway with the Alberta Law Review on the production of a special edition of that peer-reviewed journal. It is anticipated that this edition will include papers from the event that satisfy a double-blind peer review process.

Theme Statement: International Law and Democratic Theory

Democratic theory has long been part of legal scholarship dealing with national law in democratic societies. Legal scholars have long struggled, for example, with the "counter-majoritarian" difficulty of explaining why non-elected judges who hold office for life are nonetheless responsive to democratic society and its needs. At a time of ever-rising levels of international regulation and a proliferation of international institutions, including international tribunals and other forms of institutionalized dispute settlement, it is inevitable that comparable issues now emerge with respect to international law. A number of international lawyers are now addressing whether international law and institutions are "democratic." It appears that democratic societies, particularly today, pose special questions with respect to entering into, complying with or implementing international law. Ancient tensions between respect for "sovereignty" and the "ceding" of sovereign power to supranational authority common to all nations take a special form in such societies. Specifically, the tension between the two spheres of governance is increasingly perceived to be one between submitting to rules established through "democratic" processes and submitting to rules that are not the product of the familiar processes associated with democracies (namely law issued by elected, representative officials and subject to democratic "checks and balances" such as the separation of powers between executive, legislative and judicial branches of government).

While some liberal theorists of international law have asserted that such societies are more likely to comply with international law than are authoritarian regimes, particularly when international obligations arise from the relations between democracies, the evidence for this is at best tenuous. In any case, even the advocates of such a "liberal theory" of international law would not deny that democratic polities are more apt to question whether international legal obligations, both treaty based or customary, are sufficiently "accountable" or "transparent." At a time when international law purports to affect virtually every subject that is also affected by national law - from family law issues to the rights of property holders like foreign investors - it is no surprise that democracies are asking whether particular treaty or customary law regimes are compatible with national law or national institutions.

Tensions concerning the inter-penetration of national and international law are emerging in all three branches of democratic governments. Our executive branches, attentive to the results of the most recent election that put them into power, have sometimes resisted entering into certain treaties or have attempted to make treaty reservations that would eliminate the need to change existing national law. Our national judiciaries are wrestling with whether to give effect to international law seemingly at odds with rules issued by national legislatures that give effect to the will of the electorate - a struggle that is reflected in, for example, differing assessments of whether to accord respect to the decisions of international courts or the interpretations of treaties issued by other foreign courts. Legislatures and parliaments have sometimes resisted ceding their prerogatives to international institutions (as to the WTO dispute settlement system, for example) and they have not always fully implemented treaty obligations through the issuance of national law. In some cases, they are resisting giving direct effect to international obligations, as by refusing to recognize a private cause of action to individuals for violations of customary or treaty law. And democracies that are also federations, subject to delineated powers between federal and state or provincial units within them, are also facing questions about whether or how international obligations are supposed to be accommodated given traditional notions of federalism or conceptions of residual state/provincial sovereignty. In addition, the abundant civil society groups that enrich democratic societies, including NGOs that are active internationally, have sometimes opposed or criticized international regimes - from the trade regime to that of the ICC - on the premise that international civil servants or international adjudicators lack democratic credentials, are subject to capture by special interests not fully reflective of the national interest, or do not adhere to the transparent and accountable procedures associated with, for example, national administrative agencies. The alleged “democratic deficit” of certain international institutions, a complaint once heard only within European states in connection with the structures of the European Union, is now the subject of a voluminous literature across international legal regimes.

Fostering a Scholarly Network: International Law and Democratic Theory (Second Four Societies Workshop) will continue a dialogue begun in New Zealand in 2006. It will draw on scholars from five prominent democracies represented in the sponsoring organizations to explore the democratic credentials of international law. A list of topic areas where the tensions between legal processes and democratic theory might be found follows. Proposals should be related to the theme, but do not have to be confined to these topics.

  • The Role of National Legislatures and Policy-makers in the Making and Reception of International Law
  • The Governance of International Organizations
  • Democratic Accountability in the Development of Trade and Investment Law
  • The Application of International Human Rights and Humanitarian Law in the context of Terrorism
  • The Internationalisation of Criminal Law

Proposals should be submitted by e-mail to each sponsoring organization as follows:


New Volume: Netherlands Yearbook of International Law

The latest volume of the Netherlands Yearbook of International Law (Vol. 37, 2006) is out. Contents include:
  • Yuval Shany, Jurisdictional competition between national and international courts: could international jurisdiction-regulating rules apply?
  • Nigel D. White, The ties that bind: the EU, the UN and international law
  • Willem van Genugten, Rob van Gestel, Marc Groenhuijsen, & Rianne Letschert, Loopholes, risks and ambivalences in international lawmaking: the case of a framework convention on victims' rights
  • Asbjørn Eide, Rights of indigenous peoples - achievements in international law during the last quarter of a century

New Issue: International & Comparative Law Quarterly

The latest issue of the International & Comparative Law Quarterly (Vol. 56, no. 4, October 2007) is out. Contents include:
  • Pieter Kooijmans, The ICJ in the 21st Century: Judicial Restraint, Judicial Activism, or Proactive Judicial Policy
  • Malcolm N. Shaw, Title, Control, and Closure? The Experience of the Eritrea-Ethiopia Boundary Commission
  • Suzanne Egan & Rachel Murray, A Charter of Rights for the Island of Ireland: An Unknown Quantity in the Good Friday/Belfast Agreement
  • John Gillespie, Rethinking the Role of Judicial Independence in Socialist-Transforming East Asia
  • T.D. Grant, International Arbitration and English Courts
  • Nina H.B. Jørgensen, Genocide as a Fact of Common Knowledge

New Issue: European Human Rights Law Review

The latest issue of the European Human Rights Law Review (2007, no. 5) is out. Contents include:
  • Mark Berger, Self-Incrimination and the European Court of Human Rights: Procedural Issues in the Enforcement of the Right to Silence
  • Bernhard Knoll & Robert-Jan Uhl, Too Little, Too Late: The Human Rights Advisory Panel in Kosovo
  • Derek O'Brien, Judicial Review under the Human Rights Act 1998: Legislative or Applied Review?
  • Hilary Delany and Cliodhna Murphy, Towards Common Principles Relating to the Protection of Privacy Rights? - An Analysis of Recent Developments in England and France and before the European Court of Human Rights

New Issue: Ocean Development & International Law

The latest issue of Ocean Development & International Law (Vol. 38, no. 4, 2007) is out. Contents include:
  • Robert C. Beckman, PSSAs and Transit Passage - Australia's Pilotage System in the Torres Strait Challenges the IMO and UNCLOS
  • Ana I. Sinde Cantorna, Isabel Diéguez Castrillón, & Ana Gueimonde Canto, Spain's Fisheries Sector: From the Birth of Modern Fishing through to the Decade of the Seventies
  • Alex G. Oude Elferink, Maritime Delimitation Between Denmark/Greenland and Norway
  • Irini Papanicolopulu, A Note on Maritime Delimitation in a Multizonal Context: The Case of the Mediterranean

Sunday, November 11, 2007

WTO: Appellate Body Members (Provisionally) Selected

We previously noted the nominations made in late August for four WTO Appellate Body positions. It is now being reported that the selection committee has decided to put forward four names - those of Lilia Bautista (Philippines), Jennifer Hillman (United States), Shotaro Oshima (Japan), and Zhang Yuejiao (China) - to the Dispute Settlement Body for its approval at the DSB's November 19th meeting. (For bios, see here.) The DSB will almost certainly approve the committee's recommendations. Not surprisingly, Japanese and United States nationals were selected, as both countries, together with the EC, have de facto permanent AB representation. Unsurprising, too, was the selection of a Chinese national, the first for that country since it joined the WTO in 2001. Not chosen were nominees from Benin, Korea, and Pakistan.

Howse: The WTO System: Law, Politics and Legitimacy

Robert Howse (Univ. of Michigan - Law) has published The WTO System: Law, Politics & Legitimacy (Cameron May 2007). Here's the abstract:
No one with a serious professional or intellectual interest in the WTO can ignore the essays in this volume, many of which have been major flashpoints of controversy and debate in the field - such as the attack on the product/process distinction and the critique of the "constitutional" perspective on the WTO, to give but two examples. Written against the backdrop of the post-Seattle legitimacy crisis of the WTO, these works consider how the doctrine and method of WTO adjudication have responded, especially in sensitive areas such as trade and environment, and health and safety regulation. In addition to providing careful case law analysis, which often illuminates neglected or misunderstood aspects of Appellate Body rulings, the author deploys a variety of interdisciplinary tools, drawing from political philosophy, international relations theory, information economics, and comparative politics, in order to provide an original and provocative perspective on the underlying questions of principle and power that are central to the legitimacy crisis of the WTO.

New Issue: Human Rights Quarterly

The latest issue of the Human Rights Quarterly (Vol. 29, no. 4, November 2007) is out. Contents include:
  • Javaid Rehman, "War on Terror" and the Future of Muslim Minorities in the United Kingdom: Dilemmas of Multi-Culturalism in the Aftermath of the London Bombings
  • Robert Gabor Horvath, The Solzhenitsyn Effect: East European Dissidents and the Demise of the Revolutionary Privilege
  • Daniel J. Whelan & Jack Donnelly, The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight
  • Omar Encarnación, Democracy and Dirty Wars in Spain
  • Anja Mihr & Hans Peter Schmitz, Combating Apathy with Education: Developing Strategies for Sustainable Global Human Rights Promotion
  • Louis Bickford, Unofficial Truth Projects
  • Julie Mertus, The Rejection of Human Rights Framings: The Case of LGBT Advocacy in the United States
  • Linda Camp Keith & Ayo Ogundele, Legal Systems and Constitutionalism in Sub-Saharan Africa: An Empirical Examination of Colonial Influences on Human Rights
  • Jasmin Habib, Both Sides Now: Reflections on the Israel/Palestine Conflict

Kesan & Gallo: Pondering the Politics of Private Procedures: The Case of ICANN

Jay P. Kesan (Univ. of Illinois - Law) & Andres A. Gallo (Univ. of North Florida - Economics & Geography) have posted Pondering the Politics of Private Procedures: The Case of ICANN. Here's the abstract:

The creation of ICANN was sought by the United States government to promote international cooperation in the governance of the Internet based on a bottom-up system in which government intervention was limited, if not eliminated. However, as the Internet has become a global phenomenon this initiative has faced increasing opposition from the international community. As we have shown in this work, the evolution of ICANN reveals how it slowly departed from its mere technical role into a more political one, in which all groups and constituencies try to impose their preferences. During the reform movement initiated from inside ICANN, different constituencies tried to exploit the situation by gaining power positions in the new structure. The political strength of different groups and constituencies reversed some of the initial reforms and produced a totally new structure. Reform attempts from inside ICANN were challenged by the international community. These efforts concentrated on changing the main structure of ICANN into a multilateral organization controlled by international governments and removing the direct control of ICANN from the United States government. In the end, even though the proposals seem to look for different structures to regulate domain names and numbers on the Internet, they represent a political struggle between opposite points of view.

Among the results of our analysis we can highlight the following: first, as a result of the reform process, the private sector consolidated its political position in the ICANN structure, at least in the short run. With the new Bylaws, the private sector retained some of the power they had before and even gained more power. Among the winners of the reforms are: the GNSO constituencies, which gained important power spaces in the new design, ASO members, which had some gains, but more importantly, are still debating their future with a possibly more expansive relationship with ICANN, and the ccNSO, which were recognized as an independent Supporting Organization. Nonetheless, the inside-out attempt to reform proved to be weak because it failed to bring outside constituencies to the governance body and created opposition from the international community.

The inside-out reform analysis allowed us to examine the political strength of its different constituencies. This process also showed how ICANN has become more of a political instrument, instead of a technical corporation. An indication of this is that most of the debate on the reform was based on how to divide the power inside ICANN, more specifically inside the Board of Directors, and how to maximize the capacity of each group to enforce their policies.

Second, our analysis shows how the inside-out reforms sought to enhance international cooperation. Creating a Supporting Organization for the ccNSO and the incentives for international governments to participate in a better CGA opened the ICANN gates to more extensive international participation in policymaking. However, the international community did not respond adequately to the reform and tried to generate its own model for Internet Governance.

The response of the International community to the regulatory regime of ICANN was the creation of a new organization with international ties and controlled by governments. This proposal, as summarized in the WGIG report, sought to overhaul ICANN and take away the United States' direct control of ICANN and the management of names and numbers on the Internet. As a result, we face a struggle between two different types of regulation, a bottom-up approach, with more participation from the private sector, and a top-down approach which intends to take Internet governance into the international arena.

As shown in this work, Internet governance has become a hot political issue, and the organizations in charge of managing the regulatory regime will reflect these political preferences. The effectiveness of any of these governance regimes will depend on how well the specific structure of power provides an opportunity for consensus. In the end, the reform and the political struggle behind it have unmasked the political nature of ICANN. As a result, its future will depend on the consensus of its constituents and on the struggle between state and private sectors. In this debate, the United States government is one of the only governments defending ICANN in its current structure because of the contract that ties ICANN directly to the U.S. Department of Commerce. On the other hand, the international community is pushing the U.S. to hand over its sole control of ICANN.

Given the tension between both parties, we believe that this transition could move forward through the creation of a supranational entity in charge, not just of ICANN's responsibilities, but also of other areas related to the Internet, i.e., e-commerce, Internet security. We call this organization the World Internet Governance Organization (WIGO), managed by a board representing the developed countries and the technical groups with a stake in the Internet. This would entail an institution organized somewhere in between the unilateral regime represented by ICANN and the multilateral approach proposed by the United Nations. WIGO would allow both parties to obtain some of their objectives. The U.S. would retain some power in designing the system, while other developed and developing countries would have more say in the direction of the system. A well-thought proposal that considers the foremost needs of the Internet will have a greater chance of succeeding than individual attempts to overtake over the governance of the Internet. Furthermore, it will generate a point of convergence for the diverse preferences of international stakeholders. Nonetheless, the success of such a proposal requires countries to realize that unorganized or individual attempts to regulate will not carry the day.

Raustiala & Bridgeman: Nonstate Actors in the Global Climate Regime

Kal Raustiala (UCLA - Law) & Natalie Bridgeman (International Human Rights Counsel) have posted Nonstate Actors in the Global Climate Regime. Here's the abstract:
This paper, written for a forthcoming volume on climate change, provides a positive analysis of the roles and impact of non-state actors (NGOs) in the global climate change regime. It first identifies some of the major actors and distinguishes between two main types of nonstate actors: NGOs and epistemic or expert/scientific communities. Special attention is given to a uniquely important scientific, though not purely nongovernmental, body: the Intergovernmental Panel on Climate Change (IPCC). We then describe and analyze the activities of nonstate actors, examine their influence on current international responses to global climate change, and assesse the significance of their current prominence for theories of international cooperation.