Saturday, December 8, 2007
Friday, December 7, 2007
This book analyzes the establishment and operation of international agreements regulating trade in goods, focusing on the General Agreement on Tariffs and Trade (GATT).
The book outlines the history of the international trading system from the creation of the first GATT agreement in 1947 to the establishment of the World Trade Organization in 1994. The major substantive provisions of the GATT are then analyzed alongside the other foundational trade agreements of the WTO, clarifying the economic rationale for the current legal framework.
Throughout the book, it is maintained that the agreements themselves represent "incomplete contracts," realized through interpretation by the WTO and other judicial bodies. A comprehensive analysis of the case-law is provided, where it is argued that a more rigorous theoretical approach is needed to ensure a greater coherence to the interpretation of the core provisions regulating trade in goods.
For much of history, the rules of war decreed that "to the victor go the spoils." The winners in warfare routinely seized for themselves the artistic and cultural treasures of the defeated; plunder constituted a marker of triumph. By the twentieth century, international norms declared the opposite, that cultural monuments should be shielded from destruction or seizure. Prohibiting Plunder traces and explains the emergence of international rules against wartime looting of cultural treasures, and explores how anti-plunder norms have developed over the past 200 years. The book covers highly topical events including the looting of thousands of antiquities from the Iraqi National Museum in Baghdad, and the return of "Holocaust Art" by prominent museums, including the highly publicized return of five Klimt paintings from the Austrian Gallery to a Holocaust survivor.
The historical narrative includes first-hand reports, official documents, and archival records. Equally important, the book uncovers the debates and negotiations that produced increasingly clear and well-defined anti-plunder norms. The historical accounts in Prohibiting Plunder serve as confirming examples of an important dynamic of international norm change. Rules evolve in cycles; in each cycle, specific actions trigger arguments about the meaning and application of rules, and those arguments in turn modify the rules. International norms evolve through a succession of such cycles, each one drawing on previous developments and each one reshaping the normative context for subsequent actions and disputes. Prohibiting Plunder shows how historical episodes interlinked to produce modern, treaty-based rules against wartime plunder of cultural treasures.
Thursday, December 6, 2007
This Article considers one of the most fundamental defenses to a criminal prosecution "nullum crimen sine lege, nulla poena sine lege" (no crime without law, no punishment without law) (NCSL). Notwithstanding that respect for NCSL is a hallmark of modern national legal systems and a recurrent refrain in the omnibus human rights instruments, international criminal law (ICL) has to date failed to fully implement this principle. Indeed, the absence of a rigorous manifestation of NCSL within ICL can be traced to the dawn of the field. Where states have failed to enact comprehensive ICL, judicial institutions have engaged in a full-scale refashioning of ICL through jurisprudence addressed to their own jurisdiction, the elements of international crimes, and applicable forms of responsibility. Along the way, courts have updated and expanded historical treaties and customary prohibitions, upset arrangements carefully negotiated between states, rejected political compromises made by states during multilateral drafting conferences, and added content to vaguely-worded provisions that were conceived more as retrospective condemnations of past horrors than as detailed codes for prospective penal enforcement.
This Article constructs a taxonomy of analytical claims made by tribunals adjudicating ICL to evade or neutralize the defense of NCSL. These arguments turn on a complex interplay of immorality, illegality, and criminality and depend in large part on the multiplicitous sources of international law. The Article demonstrates that the collective result of the NCSL jurisprudence is that today's defendants have been subjected to rules and standards that were not part of extant law at the time they acted. This result has the potential to raise acute concerns about the rights of criminal defendants before today's ICL tribunals. Nonetheless, by applying and adapting the methodology developed by the European Court of Human Rights to enforce the articulation of the NCSL principle in its constitutive document, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Article demonstrates that the NCSL jurisprudence has not compromised the fundamental fairness of ICL. Indeed, defendants were on sufficient notice of the foreseeability of such jurisprudential innovations in light of extant domestic penal law, universal moral values expressed in international human rights law, developments in international humanitarian law and the circumstances in which it has been invoked, and other dramatic changes to the international order brought about in the post-World War II period. Any lingering concerns about the rights of the defendants can and should be mitigated by sentencing practices¿to a certain extent already in place and employed by the ad hoc criminal tribunals¿that are closely tethered to extant domestic sentencing rules relevant to analogous domestic crimes.
Although focused on the NCSL jurisprudence, this Article also presents a model of ICL formation, rhetoric, and evolution that finds resonance in the origins and gradual demise of the Anglo-American common law crime and that engages the perennial tension in international law between positivism and normativity.
Six years after the 9/11 attacks, U.S. policy concerning the detention of alleged terrorists remains legally uncertain and politically contested. Neither the criminal nor the military model in its traditional guise can easily meet the central legal challenge of modern terrorism: the legitimate preventive incapacitation of uniformless terrorists who have the capacity to inflict mass casualties and enormous economic harms and who thus must be stopped before they act. The traditional criminal model, with its demanding substantive and procedural requirements, is the most legitimate institution for long-term incapacitation. But it has difficulty achieving preventive incapacitation. Traditional military detention, by contrast, combines detention criteria and procedural flexibility that makes it relatively easy to incapacitate. But because the enemy in this war operates clandestinely, and because the war has no obvious end, this model runs an unusually high risk of erroneous long-term detentions, and thus in its traditional guise lacks adequate legitimacy.
The main goal of this essay is to show how the two systems have moved to rectify their inadequacies, and to some extent have converged on procedural and substantive criteria for detention. During the past five years the military detention system has instituted new rights and procedures designed to prevent erroneous detentions, and some courts have urged detention criteria more oriented toward individual conduct than was traditionally the case. At the same time, the criminal justice system has diminished some traditional procedural safeguards in terrorism trials, and has quietly established the capacity for convicting terrorists based on something very close to associational status. Each detention model, in short, has become more like the other.
Despite these changes, the post-convergence status quo may prove unsustainable with respect to military detention. Courts may mandate change. Congress may pursue reform as a matter of policy. Both may occur. The prospect of change, in any event, has given rise to a debate regarding the proper calibration of the non-criminal detention model. In hopes of informing that debate, we conclude by drawing on the lessons of convergence to identify the specific questions that would-be reformers must address with regard to both substantive detention criteria and procedural safeguards, highlighting the range of policy choices available and the extent to which the convergence process has paved the way toward consensus on at least some difficult issues.
The grounds upon which states may limit the freedom to manifest religion or belief are divisive questions in constitutional and international law. The focus of recent inquiry has been on laws which proscribe the wearing of religious symbols in certain aspects of the public sphere, and on the claims more generally to religious and cultural freedom of Muslim minorities in European nation-states. Stepping back from these debates, this Article aims at a more rigorous theoretical treatment of the subject. It asks whether there is a coherent notion of religious freedom in international legal theory and, if not, why not? In identifying certain problematic aspects of the extant literature, an argument is advanced which seeks to overcome the current impasse in liberal theorizing: the idea of value pluralism as a basis for religious freedom in international law. By acknowledging rather than seeking to avoid the disabling indeterminacies of rights discourse, and by recognizing the intrinsic connection between individual autonomy and communal goods, value pluralism opens new pathways for reimagining the limits of liberal theory and for cultivating an ethos of engagement toward currently intractable questions of subjectivity and intersubjectivity.
Wednesday, December 5, 2007
Klein: Threats of Terrorism and Threats to International Legal Structures: A Law of the Sea Perspective
The events of September 11, 2001, have brought a myriad of security concerns to international attention. Those events have already brought pressure to bear on the international rules concerning the use of force, international humanitarian law, and human rights law. The effect of these attacks has also initiated change in another traditional area of international law, notably the law of the sea. It is the purpose of this paper to outline what challenges are being posed by maritime security concerns to the traditional construct of the law of the sea, and to argue that not all security-driven challenges to legal regimes are detrimental to the rule of law.
There are three particular avenues that states have pursued in order to reduce the likelihood of a terrorist attack against international shipping, or otherwise to hinder terrorist activity:(1) the unilateral initiative of Australia in instituting an 1,000 mile Maritime Identification System (AMIS);(2) the Proliferation Security Initiative (PSI), an informal arrangement instigated by the United States; and,(3) the adoption of a new multilateral treaty, the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation.
In exploring these efforts, it is possible to discern how these regimes either violate existing international law or are stretching the usual interpretations of legal rules (particularly in relation to the AMIS and the PSI). The difficulty that states have faced in each endeavor to improve their maritime security is that the traditional construct of the law of the sea emphasizes the freedom of navigation and the exclusive authority of a state over vessels flying its flag. It is argued here that a small paradigm shift is necessary to enhance maritime security, and is viable without disrupting or nullifying the existing legal order.
The existing network of over 2,500 bilateral double tax treaties (DTTs) represents an important part of international law. The current DTTs are all based on two models, the OECD and UN model DTTs, which in turn are based on models developed by the League of Nations between 1927 and 1946. Despite some differences that will be discussed below, all DTTs are remarkably similar in the topics covered (even the order of articles is always the same) and in their language. About 75% of the actual words of any given DTT are identical with the words of any other DTT. Thus, the DTT network is the most important element of the international tax regime, i.e., the generally applicable rules governing income taxation of cross-border transactions. Indeed, I have argued that given the similarities among all DTTs, certain rules embodied in them (such as the requirement to prevent double taxation by granting an exemption or a foreign tax credit) have become part of customary international law, and therefore may be binding even in the absence of a DTT.
Tuesday, December 4, 2007
- Report to accompany Patent Law Treaty and Regulations Under Patent Law Treaty (Treaty Doc. 109-12) (Ex. Rept. 110-6);
- Report to accompany Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (Treaty Doc. 109-21) (Ex. Rept. 110-7); and
- Report to accompany Singapore Treaty on the Law of Trademarks (Treaty Doc. 110-2) (Ex. Rept. 110-8).
- Kenneth Watkin, Assessing Proportionality: Moral complexity and legal rules
- W. Hays Parks, Conventional Weapons and Weapons Reviews
- Michael Bothe, Customary International Humanitarian Law: Some reflections on the ICRC Study
- Steven Solomon & David Kaye, The International Law of Hamdan v. Rumsfeld
- Current Developments
- Avril McDonald, The Year in Review
- Rod Rastan & Maria Nybondas, International Criminal Courts Round-Up
- Gerrit Jan Pulles, Crystallising an Emblem: On the adoption of the Third Additional Protocol to the Geneva Conventions
- Matthias Neuner, The Darfur Referral of the Security Council and the Scope of the Jurisdiction of the International Criminal Court
- Djamchid Momtaz, Israel and the Fourth Geneva Convention: On the ICJ Advisory Opinion concerning the Separation Barrier
- Mustafa Mari, The Israeli Disengagement from the Gaza Strip: An end of the occupation?
- Yuval Shany, Faraway, So Close: The legal status of Gaza after Israel’s disengagement
Salomon: Global Responsibility for Human Rights: World Poverty and the Development of International Law
World poverty represents a failure of the international community to see half of the global population secure their basic socio-economic rights. Yet international law foresees cooperation as essential to the realisation of these human rights. In an era of considerable interdependence and entrenched economic and political advantage, the particular features of contemporary world poverty give rise to pressing questions about the scope, evolution, and application of the international law of human rights, and the attribution of global responsibility.
This book considers the evolving nature of public international law and human rights with respect to international cooperation as a basis for addressing the role and responsibility of the international community in the creation of an environment conducive to a human-centred globalization. It offers a detailed examination of the historically controversial right to development and, through a careful consideration of its current significance and application, reflects the importance of the rationale of the right to development onto the critical challenge of poverty in the 21st century. Through doctrine and jurisprudence, this book charts recent changes in international law relevant to the ability of states to develop and to fulfil their human rights obligations, and the reality that they are constrained by the actions and structural arrangements of the powerful members of the international community.
This book explores developments in the system of international safeguards meant to correspond to the deprivation of economic, social, and cultural rights today. By analysing the approach, contribution, and current limitations of the international law of human rights to the manifestations of world poverty, the reader is challenged to rethink human rights and, in particular, the framing of responsibilities that are essential to their protection.
Monday, December 3, 2007
Private International Law (July 7-25)
- Peter Trooboff (Covington & Burling): General Course: Globalization and Private International Law: Adapting Settled Theory to New Challenges
- Luiz Baptista (University of Sao Paulo): Joint Ventures or Associations of Companies in International Commerce
- Heinz-Peter Mansel (University of Cologne): Private International Law of Security in Movables
- Marie-Laure Niboyet (University of Paris X): International Disputes and Civil Procedure
- Paul Beaumont (University of Aberdeen): Protecting Children and Preventing Abduction: The Experience with International Instruments
- Dário Moura Vicente (University of Lisbon): Intellectual Property in Private International Law
- Campbell McLachlan (Victoria University of Wellington): Lis Pendens in International Litigation
- Stefania Bariattti (University of Milan): International Insolvency Proceedings
- Ahmed Mahiou (Centre National de la Recherche Scientifique, Aix-en-Provence): General Course: International Law and the Dialectic between Rigourism and Flexibility
- Emmanuel Decaux (University of Paris II): Contemporary Forms of Slavery
- Rein Müllerson (King's College London): Promoting Democracy through International Organizations with Special Reference to Central Asia
- Laurance Boisson de Chazournes (University of Geneva): Relations between Universal Organizations and Regional Organizations
- Gerhard Hafner (University of Vienna): The Emancipation of the Individual from the State under International Law
- Raul Pangalangan (University of the Philippines, Manila): Disputed Islands in the South China Sea and Southeast Asia under International Law
- Daniel Thürer (University of Zurich): International Humanitarian Law: Theory and Practice
All courses, in principle, are published in the Recueil des Cours, Collected Courses of the Hague Academy of International Law.
- J. Craig Jenkins, Stephen J. Scanlan, & Lindsey Peterson, Military Famine, Human Rights, and Child Hunger: A Cross-National Analysis, 1990-2000
- David Lektzian and Mark Souva, An Institutional Theory of Sanctions Onset and Success
- Alexander B. Downes, Restraint or Propellant? Democracy and Civilian Fatalities in Interstate Wars
- Damon Centola, Juan Carlos González-Avella, Víctor M. Eguíluz, & Maxi San Miguel, Homophily, Cultural Drift, and the Co-Evolution of Cultural Groups
- Isak Svensson, Fighting with Faith: Religion and Conflict Resolution in Civil Wars
- Edward Aspinall, The Construction of Grievance: Natural Resources and Identity in a Separatist Conflict
Sunday, December 2, 2007
The International Committee of the Red Cross's Customary International Humanitarian Law by Jean-Marie Henckaerts and Louise Doswald-Beck (Cambridge University Press, 2005) contains a unique collection of evidence of the practice of States and non-State actors in the field of international humanitarian law, together with the authors' assessment of that practice and their compilation of rules of customary law based on that assessment. The Study invites comment on its compilation of rules. Perspectives on the ICRC Study on Customary International Humanitarian Law results from a year-long examination of the Study by a group of military lawyers, academics and practitioners, all with experience in international humanitarian law. The book discusses the Study, its methodology and its rules and provides a critical analysis of them. It adds its own contribution to scholarship on the interpretation and application of international humanitarian law.Contents include:
- Daniel Bethlehem, The methodological framework of the study
- Iain Scobbie, The approach to customary international law in the study
- Françoise Hampson, Other areas of customary law in relation to the study
- Jelena Pejic, Status of conflict
- Anthony Rogers, Combatant status
- Michael Schmitt, Targeting
- Susan C. Breau, Protected persons and objects
- Karen Hulme, Environment
- William J. Fenrick, Methods of warfare
- Steven Haines, Weapons of warfare
- Françoise Hampson, Fundamental guarantees
- Agnieszka Jachec-Neale, Prisoner of war status
- Ryszard Piotrowicz, Displacement and displaced persons
- David Turns, Implementation and compliance
- Charles Garraway, War crimes
- Elizabeth Wilmshurst, Conclusions
- Allison M. Danner, Defining Unlawful Enemy Combatants: A Centripetal Story
- David Sloss, Schizophrenic Treaty Law
- Geoffrey S. Corn, Questioning the Jurisdictional Moorings of the Military Commissions Act
- Kristine A. Huskey, Standards and Procedures for Classifying “Enemy Combatants”: Congress, What Have You Done?
- Ademun-Odeke, From the “Constitution of the Maritime Safety Committee” to the “Constitution of the Council”: Will the IMCO Experience Repeat Itself at the IMO Nearly Fifty Years On?
- Alexander Orakhelashvili, Overlap and Convergence: The Interaction Between Jus ad Bellum and Jus in Bello
- Kathleen Cavanaugh, The Israeli Military Court System in the West Bank and Gaza
- Fiona de Londras, The Right to Challenge the Lawfulness of Detention: An International Perspective on US Detention of Suspected Terrorists
- Claire Breen, The Necessity of a Role for the ECOSOC in the Maintenance of International Peace and Security
- Gary Wilson, The Legal, Military and Political Consequences of the ‘Coalition of the Willing’ Approach to UN Military Enforcement Action