Symposium: Public International Law and Economics

The latest issue of the University of Illinois Law Review (2008, no. 1) contains a symposium on "Public International Law and Economics." Earlier versions of a number of these papers were previously posted. See here and links therein.

Workshops: Lord Mustill and Teitel

Lord Mustill (formerly, Law Lord; Univ. of Cambridge) will give a lecture today at University of Cambridge Lauterpacht Centre for International Law on "State Corruption in International Arbitration."

Ruti Teitel (New York Law School) will give a talk today at the Georgetown University Law Center International Human Rights Colloquium on "Humanity's Law."

Hollis: Why States Need an International Law for Information Operations

Duncan B. Hollis (Temple Univ. - Law) has posted Why States Need an International Law for Information Operations (Lewis & Clark Law Review, Vol. 11, no. 4, 2007). Here's the abstract:

Just as states have spent the last several years wrestling with the appropriate legal response to terror, they must now undertake a similar effort to deal with the burgeoning use of information operations (IO). IO involves the use of information technology, such as computer network attacks or psychological operations, to influence, disrupt, corrupt, usurp or defend information systems and the infrastructure they support. More than thirty states have developed IO capacities. But IO is also undoubtedly attractive to non-state actors like Al Qaeda, since the technology is mostly inexpensive, easy-to-use, and capable of deployment from virtually anywhere.This Article assesses the ways in which international law, specifically the rules regulating the use of force and the law of war, currently applies to IO. Conventional wisdom suggests existing rules can cover IO by analogy. The conventional wisdom is only half-right.

This Article explains why the existing rules govern IO, but challenges the unstated assumption that they do so appropriately. Translating existing rules into the IO context produces extensive uncertainty, risking unintentional escalations of conflict where forces have differing interpretations of what is permissible. Alternatively, such uncertainty may discourage the use of IO even if it might produce less harm than traditional means of warfare. Beyond uncertainty, the existing legal framework is insufficient and overly complex. Existing rules have little to say about the non-state actors that will be at the center of future conflicts. And where the laws of war do not apply, even by analogy, an overwhelmingly complex set of other international and foreign law rules purport to govern IO.

To remedy such deficiencies, this Article proposes a new legal framework, an international law for information operations (ILIO). By adopting an ILIO, states could alleviate the uncertainty and complexity of the status quo, reduce transaction costs for states fighting global terror, and lessen the collateral costs of armed conflict itself. This Article concludes with a review of some of the regulatory design questions facing an ILIO, but does not offer any specific rules. Rather, its ultimate aim is to convince states and scholars about the need for an ILIO in the first place.

Workshops: Goodwin-Gill and Waldron

Guy Goodwin-Gill (Univ. of Oxford - Law) will give a talk today at the University of Oxford Public International Law Discussion Group on "What Future for the 'Right to Seek Asylum' Fifty Years after the Universal Declaration of Human Rights?"

Jeremy Waldron (New York Univ. - Law) will give a talk today at the New York University School of Law Institute for International Law and Justice International Legal Theory Colloquium on "'Partly Laws Common to All Mankind': Foreign Law in American Courts."

New Issue: Review of European Community & International Environmental Law

The latest issue of the Review of European Community & International Environmental Law (Vol. 16, no. 3, December 2007) is out. Contents include:

• Articles on Environmental Rights
• Marie Soveroski, Environment Rights versus Environmental Wrongs: Forum over Substance?
• Lavanya Rajamani, The Right to Environmental Protection in India: Many a Slip between the Cup and the Lip?
• Marc Martens, Constitutional Right to a Healthy Environment in Belgium
• Louis J. Kotzé, The Judiciary, the Environmental Right and the Quest for Sustainability in South Africa: A Critical Reflection
• Kaniye S.A. Ebeku, Constitutional Right to a Healthy Environment and Human Rights Approaches to Environmental Protection in Nigeria: Gbemre v. Shell Revisited
• Lynda Collins, Environmental Rights for the Future? Intergenerational Equity in the EU
• Teall Crossen & Veronique Niessen, NGO Standing in the European Court of Justice - Does the Aarhus Regulation Open the Door?
• Ian Fry, More Twists, Turns and Stumbles in the Jungle: A Further Exploration of Land Use, Land-Use Change and Forestry Decisions within the Kyoto Protocol
• Soledad Aguilar, Elements for a Robust Climate Regime Post-2012: Options for Mitigation

Conference: Spring Meeting of the ABA Section of International Law

The Spring Meeting of the American Bar Association Section of International Law will take place April 1-5, in New York City. The working agenda is here.

ICJ: Peru Files Application in Maritime Boundary Dispute with Chile

Today, Peru instituted proceedings against Chile before the International Court of Justice concerning a dispute regarding “the delimitation of the boundary between the maritime zones of the two States in the Pacific Ocean, beginning at a point on the coast called Concordia, . . . the terminal point of the land boundary established pursuant to the Treaty . . . of 3 June 1929,” and the recognition in favour of Peru of a “maritime zone lying within 200 nautical miles of Peru’s coast, and thus appertaining to Peru, but which Chile considers to be part of the high seas.” Peru “requests the Court to determine the course of the boundary between the maritime zones of the two States in accordance with international law . . . and to adjudge and declare that Peru possesses exclusive sovereign rights in the maritime area situated within the limit of 200 nautical miles from its coast but outside Chile’s exclusive economic zone or continental shelf.” Peru invokes Article XXXI of the American Treaty on Pacific Settlement (Pact of Bogotá) of April 30, 1948, as the basis for the Court's jurisdiction. The ICJ press release is here.

Conference: The Law and Politics of International Cooperation

Later this week, on January 18th and 19th, the Vanderbilt International Legal Studies Program will host its Winter 2008 Roundtable. The topic is "The Law and Politics of International Cooperation." Here are the papers and commentators:

• Andrew Kent (Fordham Univ. - Law), The Insular Cases Outside the Courts
• Comment: Ingrid Wuerth (Vanderbilt Univ. - Law)
• Tom Ginsburg (Univ. of Illinois - Law & Political Science), International Delegation: The Nth Power
• Comment: Jacob Katz Cogan (Univ. of Cincinnati - Law)
• Larry Helfer (Vanderbilt Univ. - Law), Constructing an Intellectual Property Rule of Law in the Andean Community
• Comment: Arnulf Becker Lorca (King's College London - Law)
• Catherine Powell (Fordham Univ. - Law), Tinkering with Torture in the Aftermath of Hamdan: Testing the Relationship between Internationalism and Constitutionalism
• Comment: Jaya Ramji-Nogales (Temple Univ. - Law)
• Mark Axelrod (Duke Univ. - Political Science), Saving Institutional Benefits: Path Dependence in International Law
• Comment: Hannah Buxbaum (Indiana Univ., Bloomington - Law)
• Anupam Chander (Univ. of California, Davis - Law), Trade 2.0
• Comment: Monica Hakimi (Benjamin N. Cardozo School of Law)
• Susan Franck (Univ. of Nebraska - Law), Empiricism and International Law: Application to Investment Treaty Dispute Resolution
• Comment: Chris Brummer (Vanderbilt Univ. - Law)
• Asif Efrat (Harvard - Government), Governing Guns, Opposing Opium: The Politics of Internationally Regulated Goods
• Comment: Bernadette Atuahene (Chicago-Kent College of Law)

Conference: Terrorists and Detainees: Do We Need a New National Security Court?

The American University Washington College of Law Program on Law and Government and the Brookings Institution will host a conference on Terrorists and Detainees: Do We Need a New National Security Court?, on February 1, 2008. The program is here. Why attend?

In the wake of the 9/11 attacks and the capture of hundreds of suspected al Qaeda and Taliban fighters, we have been engaged in a national debate as to the proper standards and procedures for detaining “enemy combatants” and prosecuting them for war crimes. Dissatisfaction with the procedures established at Guantanamo for detention decisions and trials of detainees for war crimes by military commissions, and concerns about the feasibility of conducting major terrorism trials in regular Article III courts, have led to proposals to establish a special National Security Court. This new court, which would have greater flexibility to conduct non-public proceedings than do the regular federal courts, could make or review status and detention decisions and/or conduct trials of suspected terrorists. The conference will discuss the pros and cons of establishing such a new federal court, and what jurisdiction should be assigned to such a court.

Florestal: On the Origin of Fear in the World Trade System: Excavating the Roots of the Berlin Conference of 1884

Marjorie Florestal (Univ. of the Pacific - McGeorge School of Law) has posted On the Origin of Fear in the World Trade System: Excavating the Roots of the Berlin Conference of 1884 (American Society of International Law, Proceedings, forthcoming). Here's the abstract:

Most experts trace the birth of international trade back to China's Old Silk Road, but Africa too has a long and rich history of commerce. Walk through any marketplace in Africa and evidence of the continent's commercial vibrancy and entrepreneurial spirit abounds. From a small village in Cameroon, to a miles-long bazaar in Côte d'Ivoire, African markets are alive with the shouts of merchants hoping to finalize a sale with a recalcitrant shopper. In Senegal, young boys roam the streets hawking cheap goods made in China to every pedestrian or unwary commuter stuck in one of Dakar's infernal traffic jams. And Benin's "Mama Benzes" keep the economy going while providing for their families in style.

Despite the many examples of its trade-focused and entrepreneurial spirit, however, Africa has failed to join the global economy in anything other than a consumer capacity. What accounts for Africa's failure to prosper from a globalization phenomenon that has brought benefits to countries as diverse as Costa Rica, India, China and Brazil? Some maintain Africans themselves are to blame, while others suggest Africa's woes can best be explained by a system that is inherently biased against it. While there is evidence to support both viewpoints, either taken alone represents at best only a partial truth. A full understanding of Africa's position in the modern economic order must also take into account the phenomenon of fear that permeates much of the continent's interaction with the world trade system.

Until very recently African countries were not a significant presence in the world trading system. What accounts for this hesitancy? "Africa does not want to develop," is the rather provocative response of African scholar Axelle Kabou. This rejection of development, according to Kabou, has its roots in sociological and psychological considerations. At least one of the "sociological and psychological" conditions to which Kabou refers, this article maintains, is fear.

The origin of the fear that dominates Africa and hampers its full engagement in the trade order has roots dating back to 1884. In November of that year, European, American and Australian leaders met to define Africa's role in the "community of nations". The Berlin West African Conference is remembered primarily for having drawn the map of modern Africa by carving up the continent into nation-states, but the conference has its true roots in economic rather than political history. The goal of the conference was to establish free trade as the guiding principle in large parts of the continent. Beyond establishing borders, it succeeded in legitimizing Africa's de facto position as a source of wealth to be exploited for the benefit of others. It is this single act that gave birth to modern Africa's fear and resistance to the globalization phenomenon. What elevates the Berlin Conference of 1884-1885 from a relic of history to a pathway towards understanding Africa's place in the world trade system is that the theoretical underpinnings of the conference to this day continue to animate the Western approach to African development.

Drawing on the rich but forgotten history of the Berlin Conference, as well as the emerging literature on law and emotion, this article re-conceptualizes Africa's place in the world trade order through a lens of fear first constructed by the conference. What is the shape, texture, depth and breadth of that fear? How might a full understanding of that fear help us adopt a new set of trade rules responsive to Africa's needs?

New Issue: International Journal of Transitional Justice

The latest issue of the International Journal of Transitional Justice (Vol. 1, no. 3, December 2007) is out. This is a special issue on Gender and Transitional Justice. Contents include:

• Navanethem Pillay, Editorial Note
• Ruth Rubio-Marín & Pablo de Greiff, Women and Reparations
• Fionnuala Ní Aoláin & Eilish Rooney, Underenforcement and Intersectionality: Gendered Aspects of Transition for Women
• Michelle Staggs Kelsall & Shanee Stepakoff, ‘When We Wanted to Talk About Rape’: Silencing Sexual Violence at the Special Court for Sierra Leone
• Brandon Hamber, Masculinity and Transitional Justice: An Exploratory Essay
• Emily Rosser, Depoliticised Speech and Sexed Visibility: Women, Gender and Sexual Violence in the 1999 Guatemalan Comisión para el Esclarecimiento Histórico Report
• Kirsten Campbell, The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the Former Yugoslavia

Corn & Jensen: Untying the Gordian Knott: A Proposal for Determining Applicability of the Laws of War to the War on Terror

Geoffrey S. Corn (South Texas College of Law) & Eric Talbot Jensen (Judge Advocate General’s Corps, U.S. Army) have posted Untying the Gordian Knott: A Proposal for Determining Applicability of the Laws of War to the War on Terror. Here's the abstract:

One of the most difficult legal questions generated by the U.S. proclaimed Global War on Terror has been determining when, if at all, the laws of war apply to military operations directed against nonstate actors? This question has produced a multitude of answers from scholars, government officials, military legal experts, and even the Supreme Court of the United States. The only aspect of this question that would likely generate consensus among these diverse viewpoints is that the difficulty of applying a state-centric law triggering paradigm to a dispute that defies state-centric classification has created tremendous legal uncertainty.

While from a lay perspective it may seem that resolving such a question is like "dancing on the head of a needle", the resolution has profound consequences for virtually every person involved or impacted by this "war". Since the time of the U.S. military response to the attacks of 9.11, the executive branch has struggled to articulate, and in many judicial challenges defend, how it could invoke the authorities of war without accepting the obligations of the law regulating war. Responding to such questions by application of the traditional law-triggering paradigm was like fitting a square peg into a round hole. Because of this, the time has come to develop a new approach to determining application of the laws of war that reconciles this disparity between authority and obligation related to the conduct of combat military operations. This will require adopting a new triggering "criteria". This trigger must reflect both the underlying purpose of the laws of war, but also the pragmatic realities of contemporary military operation.

It is the thesis of this article that a nation's assignment of status based ROE to its military should constitute the trigger requiring that nation and its military to apply the laws of war to that military operation. As nations prepare to use military force, national leaders dictate rules on how the military should use military force in the impending operation. These rules, broadly categorized as Rules of Engagement (ROE),fall into two general categories: conduct based ROE which allow military personnel to respond with force based on an individual's actions, and status based ROE which allow military personnel to use deadly force based only on an individual's membership in a designated organization, regardless of their conduct.

Spring Semester International Law Colloquia

The new academic term brings a new set of international law colloquia. I note a number of these below. I welcome emails announcing similar events (colloquia, seminars, conferences, and the like), though I cannot promise to post on everything I receive.

Georgetown University Law Center International Human Rights Colloquium

• January 18: Ruti Teitel (New York Law School), Humanity's Law
• January 25: Patrick Keenan (Univ. of Illinois - Law), Resources, Windfalls, and Aid: A Behavioral Economics Theory of Human Rights and Development
• February 1: David Kennedy (Harvard - Law), Of War and Law
• February 8: Paul Kahn (Yale - Law), Torture and International Law
• February 15: Lucie White (Harvard - Law), Innovations in ESC Rights Advocacy
• February 22: Karen Engle (Univ. of Texas - Law), Indigenous Roads to Development: Self-Determination, Human Rights, and Culture
• February 29: Fionnuala Ni Aolain (Univ. of Minnesota - Law), Gender, Truth, and Transition
• March 14: Jenny Martinez (Stanford Univ. - Law), Substance and Process in the War on Terror
• March 28: Paolo Carrozza (Univ. of Notre Dame - Law), The "Art" of Democracy and the "Taste For Local Freedom": International Human Rights and the American Constitutional Difference
• April 4: Martin Flaherty (Fordham Univ. - Law), Executive Authority, Fundamental Rights, and Global Separation of Powers
• April 11: Balakrishnan Rajagopal (Massachusetts Institute of Technology - Urban Studies and Planning), The Limits of Legalizing Social Rights
• April 18: Peter Spiro (Temple Univ. - Law), An International Law of Citizenship
• April 25: Phillip Alston (New York Univ. - Law), Topic TBA

New York University School of Law Institute for International Law and Justice Colloquium: Interpretation and Judgment in International Law

• January 17: Jeremy Waldron (NYU - Law), "Partly Laws Common to All Mankind": Foreign Law in American Courts
• January 24: Catharine MacKinnon (Univ. of Michigan - Law), Women’s Status, Men’s States
• January 31: Beth Simmons (Harvard Univ. - Government), Participation in and Effects of Human Rights Treaties
• February 7: Richard Stewart (NYU - Law), Accountability in Global Governance
• February 14: Joseph Weiler (NYU - Law), The Theory and Practice of Interpretation in International Law
• February 21: No Colloquium
• February 28: Derek Jinks (Univ. of Texas - Law), Fragmentation of International Law concerning Individuals in Armed Conflict
• March 6: Robert Howse (Univ. of Michigan - Law), Interpretation in the World Trade Organization
• March 13: Martti Koskenniemi (University of Helsinki - Law & NYU - Law), Natural Law between Moral History and Raison d’Etat: Understanding the Pre-History of International Law
• March 14 and 15: The Program in the History and Theory of International Law convenes a conference on Roman Law and Imperialism in the Foundations of Modern International Law
• March 20: No Colloquium
• March 27: José Alvarez (Columbia Univ. - Law), Interpretive Problems in International Investment Law
• April 3: Ryan Goodman (Harvard - Law), Sociological Theory Insights into International Human Rights Law
• April 10: Sally Engle Merry (NYU - Anthropology & Law and Society Institute), Indicators in Global Governance
• April 17: Christopher McCrudden (Oxford Univ. & Univ. of Michigan - Law), Human Dignity in Human Rights Interpretation
• April 24: Stephen Gardbaum (Univ. of California, Los Angeles - Law), Is U.S. Constitutional Rights Jurisprudence Exceptional?

Temple University School of Law International Law Colloquia

• January 24: Carlos Vázquez (Georgetown Univ. - Law), Judicial Enforcement of Treaties
• February 7: Melissa Waters (Washington and Lee Univ. - Law), Veni, Vidi, Amici: Law Professors as Transnational Norm Entrepreneurs Before the U.S. Supreme Court
• February 21: Jeremy Rabkin (George Mason Univ. - Law), Exit, Voice, Loyalty in International Organizations: Why Can't the President Check the First Option?
• March 6: Robert Ahdieh (Emory Univ. - Law & Princeton Univ. - Program in Law and Public Affairs), Standardization 2.0: A New Version of the Game
• March 27: Sean Murphy (George Washington Univ. - Law), The Jus Ad Bellum in View of New Security Threats
• April 10: Jutta Brunnée (Univ. of Toronto - Law), Interactional International Law: Reflections on Obligation
• April 24: Rachel Brewster (Harvard - Law), Renegotiation and Reinterpretation of Treaties

University of Cambridge Lauterpacht Centre for International Law Lent Term Lecture Programme

• January 18: Lord Mustill (formerly, Law Lord; Univ. of Cambridge), State Corruption in International Arbitration
• January 22, 23, 24: Ralph Zacklin (formerly, Deputy Legal Adviser, United Nations), Hersch Lauterpacht Memorial Lectures: The UN Secretariat and the Use of Force in a Unipolar World
• February 1: Michael Carrell & Iris Müller (both, International Committee of the Red Cross Customary International Humanitarian Law Project), A Report from the Trenches on the ICRC Humanitarian Law Project
• February 8: Richard Plender (20 Essex Street, London), The ECJ's Decision in the MOX Plant Case and Its Implications
• February 14: Philip Allott (Univ. of Cambridge), International Law and the Transcending of Politics
• February 15: Chester Brown (Legal Division, Foreign and Commonwealth Office), Procedure and Remedies Before Different International Courts and Tribunals: Convergence or Divergence?
• February 22: Charlotte Ku (Univ. of Illinois, Urbana-Champaign - Law) & Paul Diehl (Univ. of Illinois, Urbana-Champaign - Political Science), A New Framework for Understanding the International Legal System
• February 29: Major General David Howell (Director of Army Legal Services), The Military Lawyer: Commander's Accomplice or Voice of Conscience?
• March 6: Shaheed Fatima (Blackstone Chambers), The House of Lords Decision in Al Jedda: The Security Council and State Responsibility for Internment
• March 7: Christopher Staker (Deputy Prosecutor, Special Court for Sierra Leone), The Special Tribunal for Sierra Leone

University of Georgia School of Law International Law Colloquium

• February 1: Greg Shaffer (Loyola Univ., Chicago - Law), A Call for a New Legal Realism in the Understanding and Building of International Law
• February 8: Beth Simmons (Harvard Univ. - Government), International Human Rights Law, Politics and Accountability
• February 15: Nadia Bernaz (National University of Ireland, Galway - Irish Centre for Human Rights), Caribbean Court of Justice: Reflections on a Truly Hybrid Court
• February 22: Ingrid Wuerth (Vanderbilt Univ. - Law), The Original Meaning of the Captures Clause
• February 29: Tonya Putnam (Columbia Univ. - Political Science), Beyond Presumption?: Explaining Variation in US Extraterritorial Jurisdiction over Civil Claims
• March 21: Paul Schiff Berman (Univ. of Connecticut - Law), Global Legal Pluralism
• March 28: Frédéric Mégret (McGill Univ. - Law), Civil Disobedience in Defense of International Law: What Should International Law Have to Say?
• April 4: David Caron (Univ. of California, Berkeley - Law), Why International Courts and Tribunals Look and Act as They Do

University of Oxford Public International Law Discussion Group (Hilary Term)

• January 17: Guy Goodwin-Gill (Univ. of Oxford - Law), What Future for the "Right to Seek Asylum" Fifty Years After the Universal Declaration of Human Rights?
• January 24: Federico Ortino (British Institute of International and Comparative Law), International Law of Foreign Investment: Emerging Chaos or Emerging System?
• January 31: M. Davison & S. Nesbitt, Topic TBA
• February 7: TBA
• February 14: Jakob Wurm, The Law of State Immunity in Domestic Courts
• February 21: S. Allen, Topic TBA
• February 28: Malgosia Fitzmaurice (Queen Mary, Univ. of London - Law), Topic TBA
• March 6: Giorgio Gaja (Univ. of Florence - Law), Impermissible Reservations

Chapman & van der Merwe: Truth and Reconciliation in South Africa: Did the TRC Deliver?

Audrey R. Chapman (Univ. of Connecticut Health Center) & Hugo van der Merwe (Centre for the Study of Violence and Reconciliation, Cape Town) have published Truth and Reconciliation in South Africa: Did the TRC Deliver? (Univ. of Pennsylvania Press 2008). This is another volume in the series Pennsylvania Studies in Human Rights. Contents include:

• Audrey R. Chapman & Hugo van der Merwe, Introduction: Assessing the South African Transitional Justice Model
• Hugo van der Merwe, What Survivors Say About Justice: An Analysis of the TRC Victim Hearings
• Audrey R. Chapman, The TRC's Approach to Promoting Reconciliation in the Human Rights Violations Hearings
• Audrey R. Chapman, Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings
• Jeremy Sarkin, An Evaluation of the South African Amnesty Process
• Timothy Sizwe Phakathi & Hugo van der Merwe, The Impact of the TRC's Amnesty Process on Survivors of Human Rights Violations
• Audrey R. Chapman & Patrick Ball, Levels of Truth: Macro-Truth and the TRC
• Audrey R. Chapman, Truth Recovery Through the TRC's Institutional Hearings Process
• Gunnar Theissen, Object of Trust and Hatred: Public Attitudes Toward the TRC
• Piers Pigou, Reaping What You Sow: Political Parties, the TRC, and the Quest for Truth and Reconciliation
• Hugo van der Merwe & Audrey R. Chapman, Did the TRC Deliver?
• Audrey R. Chapman & Hugo van der Merwe, Reflections on the South African Experience

Lecture: Hurrell on "Foundations of Governance in a Deeply Divided World"

Andrew Hurrell (Oxford - Politics & International Relations) will give a lecture today on "Foundations of Governance in a Deeply Divided World" as part of Oxford's Governing the Globe? Lecture Series.

New Issue: Journal of World Intellectual Property

The latest issue of the Journal of World Intellectual Property (Vol. 10, no. 5, September 2007) is out. Contents include:

• Yogesh Anand Pai, Patent Protection for Computer Programs in India: Need for a Coherent Approach
• Dwijen Rangnekar, Context and Ambiguity in the Making of Law: A Comment on Amending India's Patent Act
• Gaelic P. Krikorian & Dorota M. Szymkowiak, Intellectual Property Rights in the Making: The Evolution of Intellectual Property Provisions in US Free Trade Agreements and Access to Medicine