Tully: Corporations and International Lawmaking

Stephen Tully has published Corporations and International Lawmaking (Martinus Nijhoff Publishers 2007). Here's the abstract:

The classical model of international lawmaking posits governments as exclusively authoritative actors. However, commercially-oriented entities have long been protagonists within the prevailing international legal order, concluding contracts and resolving disputes with governments. Is the international legal personality of corporations undergoing further qualitative transformations? Corporations influence the State practice constitutive of custom and create, refashion or challenge normative rules. The corporate willingness to fill legal lacunae where governments do not exercise their full regulatory responsibility is also observable through resort to alternative legal mechanisms. Corporations moreover contribute directly to treaty negotiations and occupy crucial roles during subsequent implementation. Indeed, an analysis of the access conditions and participatory modalities for non-State actors could support a right to participate under common international procedural law. Their substantive contributions are also evident when corporations participate in enforcing international law against governments through national courts, diplomatic protection (including the WTO) and arbitration (including NAFTA). However, the practice of intergovernmental organizations reveals several challenges including managing corporate interaction with developing country governments and other non-State actors. Acknowledging corporate contributions also has important implications for national regulatory autonomy, the ability of governments to mediate contested policy issues, the democratic legitimacy of the contemporary lawmaking process and an understanding of consent as the underlying basis for international law.

Current Prospects for UNCLOS

Yesterday, I noted a Wall Street Journal article on the Commission on the Limits of the Continental Shelf and noted the reported conclusion of a senior State Department official that Senate advice and consent this year "appears unlikely." Now comes a report that that official says that the Journal's characterization of his or her views is incorrect. Scott Paul, who has lobbied for the Convention's approval, quotes an email from the official, as follows: "I told the reporter that our official position was that we were very hopeful of getting the treaty through the Senate this year. Then he probed about obstacles in our way, like the election year, the strong lobbying efforts by opponents, the opposition by GOP candidates (there were more than one at the time), etc. His spin on my responses was a lot more negative than I expected." Paul adds: "knowing this individual and his/her outlook on the Convention's prospects, I also happen to know that it [the Journal's characterization of the official's views] is wrong."

Vietnam Association for Victims of Agent Orange v. Dow Chemical Co.

Yesterday, the U.S. Court of Appeals for the Second Circuit decided Vietnam Association for Victims of Agent Orange v. Dow Chemical Co. (opinion here). The plaintiffs alleged, among other things, that "the United States government violated international law by spraying toxic herbicides in areas of South Vietnam from 1962 to 1970 and that Defendants either aided and abetted the government's violations by supplying it with Agent Orange or that they were directly liable in their corporate capacities," in violation of the Alien Tort Statute. The district court dismissed the ATS claim (opinion here). The Second Circuit, in an opinion by Judge Miner, affirmed the lower court's decision, concluding:

Plaintiffs have, at best, alleged a customary international norm proscribing the purposeful use of poison as a weapon against human beings that is inapplicable in this case. We hold that Plaintiffs' claim that “defendants manufactur[ed] and suppl[ied] a[n] herbicide laced with poison” and used as a defoliant fails to satisfy the standard set forth by the Supreme Court in Sosa for recognition of a tort in violation of international law and is, therefore, not cognizable under the ATS. [citations omitted]

Defendants have argued that “civil aiding-and-abetting liability” may not be imposed on corporate entities for violations of the law of war and that, in any event, prudential considerations should preclude adjudication of Plaintiffs' claims. Because Plaintiffs' claims fail to assert a violation of international law norms that are universally accepted and as specific as the paradigmatic norms identified in Sosa, thereby resulting in a failure to establish a cognizable cause of action that gives rise to jurisdiction under the ATS, we need not address these secondary arguments.FN6

[FN6. After the filing of briefs and oral argument in this appeal, this Court addressed in a different case whether a district court had subject matter jurisdiction over ATS claims alleging that domestic and foreign corporations aided and abetted the government of apartheid South Africa in committing various violations of customary international law. See Khulumani v. Barclay Nat'l Bank, 504 F.3d 254, 260 (2d Cir.2007) (per curiam) (holding that “in this Circuit, a plaintiff may plead a theory of aiding and abetting liability under the [ATS]”).]

Also on the panel were Judges Sack and Hall.

Call for Papers: Asian Society of International Law Young Scholars Workshop

The National University of Singapore and the Asian Society of International Law have issued a call for papers for the inaugural Asian Society of International Law Young Scholars Workshop, at the NUS, September 10-12, 2008. Here's the call:

The National University of Singapore (NUS) and the Asian Society of International Law (AsianSIL) are pleased to invite applications to attend the inaugural Asian Society of International Law Young Scholars Workshop. The workshop will be held at NUS in Singapore from 10-12 September 2008. Paper-givers who are selected through a competitive process will have their reasonable expenses covered.

The workshop builds on the historic creation of AsianSIL in 2007 and is intended to cultivate the next generation of international legal scholars. This may include doctoral students and younger academics, as well as exceptional masters students. Young legal professionals with an interest in scholarship are also encouraged to apply.

The intention is for presenters to offer drafts of works in progress that can benefit from constructive criticism in a supportive and collegial environment. Each participant will present his or her own paper and comment on that of another.

Proposals from young scholars and professionals across the region are encouraged on any topic linked to international law, but particularly focusing on the "problems and prospects of a just world ordered under law". Subject areas might include (a) History and Theory of International Law, (b) Law of Armed Conflict (IHL), (c) International Organizations, (d) Dispute Settlement, (e) Law of the Sea, (f) Law of Environment, (g) Human Rights, (h) International Criminal Law, (i) Law of Development, (j) International Economic Law, (k) Private International Law (Conflict of Laws).

Proposals should be submitted on the Abstract Submission Form.

Please ensure that you include an abstract of not more than 250 words, indicating the relationship of the proposed paper to the conference theme of "problems and prospects" and identifying one or more of the subject areas listed above to which the paper relates.

Completed forms must be emailed to asiansil-admin@nus.edu.sg by 31 March 2008. Those selected to participate in the workshop will be notified by 14 April 2008. Participation will be contingent on producing a draft of the paper (in the order of 8,000 words) by 31 July 2008.

WSJ Article on the Commission on the Limits of the Continental Shelf

Today, the Wall Street Journal has an article on the Commission on the Limits of the Continental Shelf. The piece - Board of Scientists Is Swamped By Claims for Rich Sea Floors - describes the work of the Commission and what's at stake. It also notes that the United States has not made any submissions to the Commission, as it is not a party to the UN Convention on the Law of the Sea. The treaty is pending in the Senate, but Senate advice and consent "appears unlikely," according to a senior State Department official.

Workshops: Engle, Ku, Wuerth

Karen Engle (Univ. of Texas - Law) will give a talk today at the Georgetown University Law Center International Human Rights Colloquium on "Indigenous Roads to Development: Self-Determination, Human Rights, and Culture."

Charlotte Ku (Univ. of Illinois, Urbana-Champaign - Law) will give a talk today at the University of Cambridge Lauterpacht Centre for International Law Lent Term Lecture Programme on "A New Framework for Understanding the International Legal System."

Ingrid Wuerth (Vanderbilt Univ. - Law) will give a talk today at the University of Georgia School of Law International Law Colloquium on "An Originalism for Foreign Affairs?"

Symposium: Law Without Borders: Current Legal Challenges Around the Globe

The Temple Law Review will host a symposium on "Law Without Borders: Current Legal Challenges Around the Globe," March 1, 2008, in Philadelphia. The program is not yet available online. Why attend?

As legal issues increasingly transcend borders, and the needs of clients and the profession expand, this Symposium brings together leading scholars to discuss several of the global community's most pressing legal topics. This Symposium will highlight the unique challenges developed and developing nations must face in promoting intellectual property rights, developing economic reforms, protecting the environment, and building constitutions.

The Symposium will feature panels on four different areas of law, each studying a different facet of the dynamic between, and distinct challenges faced by, developing and developed countries. Panelists will discuss traditional knowledge as a form of intellectual property, economic reform and the Cape Town Convention, climate change litigation and water regulation, and comparative constitution building.

Workshops: Allen, Rabkin, Scheffer

Stephen Allen (Brunel Univ. - Law) will give a talk today at the University of Oxford Public International Law Discussion Group on "International Law, the Bancoult Litigation and the Prospect of Resettling the Chagos Islands."

Jeremy Rabkin (George Mason Univ. - Law) will give a talk today at the Temple University School of Law International Law Colloquia on "Exit, Voice, Loyalty in International Organizations: Why Can't the President Check the First Option?"

David Scheffer (Northwestern Univ. - Law) will give a talk today at the California Western School of Law International Legal Studies Program and the University of California, San Diego Institute for International, Comparative, and Area Studies Joint Speaker Series on the Future of International Humanitarian Law. The topic is "The End of Exceptionalism in War Crimes."

Symposium: Trade Sanctions in a 21st Century Economy: Are They an Appropriate or Effective Means of Altering State Behavior?

The University of Pennsylvania Journal of International Law and the University of Pennsylvania Law School Institute of Law and Economics will host a symposium on "Trade Sanctions in a 21st Century Economy: Are They an Appropriate or Effective Means of Altering State Behavior?," February 29, 2008, in Philadelphia. The program is here.

Petersmann: Judging Judges

Ernst-Ulrich Petersmann (European Univ. Institute - Law) has posted Judging Judges: Do Judges Meet Their Constitutional Obligation to Settle Disputes in Conformity with 'Principles of Justice and International Law'?. Here's the abstract:

This contribution argues that the universal recognition of human rights requires judges to take human rights more seriously in their judicial settlement of disputes "in conformity with the principles of justice and international law", as prescribed in the Vienna Convention on the Law of Treaties (Preamble VCLT) as well as in the UN Charter (Article 1). Section I explains the constitutional duty of judges to interpret law and settle disputes in conformity with principles of justice as increasingly defined by human rights. Section II argues that the "multilevel judicial governance" in Europe - notably between the European Community (EC) Court of Justice and its Court of First Instance, the EC courts and national courts, the European Free Trade Area (EFTA) Court and national courts, and the European Court of Human Rights (ECtHR) and national courts - was successful due to the fact that this judicial cooperation was justified as multilevel protection of constitutional citizen rights and, mainly for this reason, was supported as "just" by judges, citizens and parliaments. Section III concludes that the European "solange-method" of judicial cooperation "as long as" other courts respect constitutional principles of justice should be supported by citizens, judges, civil society and their democratic representatives also in judicial cooperation with worldwide courts and dispute settlement bodies. As explained in Section IV, in a world that continues to be dominated by power politics and by reasonable "constitutional pluralism", it is easier for international judges to meet their obligation to settle disputes "in conformity with principles of justice" if courts cooperate and base their "judicial discourses" on "public reason", respect for human rights and judicial protection of the constitutional principles underlying human rights law.

New Volume: Canadian Yearbook of International Law

The latest volume of the Canadian Yearbook of International Law (Vol. 44, 2006) is out. Contents include:

• Suzanne LaLonde & Ronald St. J. MacDonald, Donat Pharand: The Arctic Scholar
• Bernard Duhaime, Le Système interaméricain et la protection des droits économiques, sociaux et culturels des personnes et des groupes vivant dans des conditions particulières de vulnérabilité
• Nathan Hume, Four Flaws: Reflections on the Canadian Approach to Private International Law
• Céline Lévesque, Influences on the Canadian FIPA Model and the US Model BIT: NAFTA Chapter 11 and Beyond
• Noura Karazivan, Diplomatic Protection: Taking Human Rights Extraterritorially
• Ibironke T. Odumosu, Revisiting NGO Participation in WTO and Investment Dispute Settlement: From Procedural Arguments to (Substantive) Public Interest Considerations
• Olivier Barsalou, Les actes unilatéraux étatiques en droit international public: Observations sur quelques incertitudes théoriques et pratiques
• Edward McWhinney, International Law Making in Times of Competing Ideologies or Clashing Civilizations: Peaceful Coexistence and Soviet-Western Legal Dialogue in the Cold War Era
• Claude C. Emanuelli, Comments on the ICRC Study on Customary International Humanitarian Law
• Ljiljana Biukovic, Compliance with International Treaties: Selective Adaptation Analysis

Workshop: Çali on "The Interpretive Authority of Legal and Quasi-Legal Human Rights Bodies"

Basak Çali (University College London - Political Science) will give a talk today at University College London as part of the International Law Association British Branch seminar series. The subject is: "The Interpretive Authority of Legal and Quasi-Legal Human Rights Bodies."

New Issue: Transnational Dispute Management Journal

The latest issue of the Transnational Dispute Management Journal (Vol. 5, no. 1, February 2008) is out. The theme is "UNCTAD Expert Meeting on Development Implications of International Investment Rule Making."

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 23, no. 1, January 2008) is out.

Annual Report of the WTO Appellate Body

The Annual Report of the WTO Appellate Body is now available here.

New Issue: Melbourne Journal of International Law

The latest issue of the Melbourne Journal of International Law (Vol. 8, no. 2, October 2007) is out. Contents include:

• Symposium - International Humanitarian Law
• Think Pieces
• Hilary Charlesworth, Law After War
• Helen Durham, International Humanitarian Law and the Gods of War: The Story of Athena versus Ares
• Alison Duxbury, Drawing Lines in the Sand - Characterising Conflicts for the Purposes of Teaching International Humanitarian Law
• Timothy L.H. McCormack, David Hicks and the Charade of Guantánamo Bay
• Robert J. Mathews, WMD Arms Control Agreements in the Post-September 11 Security Environment: Part of the 'Counter-Terrorism Toolbox'
• Bruce Oswald, The Law on Military Occupation: Answering the Challenges of Detention during Contemporary Peace Operations?
• Peter Rowe, The Rules of Engagement in Occupied Territory: Should They Be Published?
• Gerry Simpson, The Death of Baha Mousa
• John Tobin, Seeking Clarity in relation to the Principle of Complementarity: Reflections on the Recent Contributions of Some International Bodies
• Case Notes
• Michelle Lesh, The Public Committee Against Torture in Israel v. The Government of Israel: The Israeli High Court of Justice Targeted Killing Decision
• David Turns, Application of the Convention on the Prevention of the Crime of Genocide: Bosnia and Herzegovina v. Serbia and Montenegro
• Commentaries
• Nicole Rogers, Violence and Play in Saddam's Trial
• Michael N. Schmitt, 21st Century Conflict: Can the Law Survive?
• Book Reviews
• Ralph Henham, Atrocity, Punishment and International Law by Mark A. Drumbl
• Dale Stephens, Of War and Law by David Kennedy
• Feature
• B.S. Chimni, The Past, Present and Future of International Law: A Critical Third World Approach
• Fleur Johns, International Law and its Others by Anne Orford (ed)
• Comment
• Gregor Noll, Why Refugees Still Matter: A Response to James Hathaway

Dorf: Dynamic Incorporation of Foreign Law

Michael C. Dorf (Columbia Univ. - Law) has posted Dynamic Incorporation of Foreign Law. Here's the abstract:

Lawmaking bodies in one polity sometimes incorporate the law of another polity "dynamically," so that when the law of the foreign jurisdiction changes, the law of the incorporating jurisdiction changes automatically. Dynamic incorporation can save lawmaking costs, lead to better legal rules and standards, and solve collective action problems. Thus, the phenomenon is widespread. However, dynamic incorporation delegates lawmaking power. Further, as the formal and practical barriers to revocation of the act of dynamic incorporation become higher, that act comes closer to a cession of sovereignty, and for democratic polities, such sessions entail a democratic loss. Accordingly, dynamic incorporation of foreign law has proven controversial both within federal systems and at the international level. The problem is most acute when nation-states agree to delegate lawmaking power to a supra-national entity. In order to gain the reciprocal benefits of cooperation and coordination, the delegation must be functionally irrevocable or nearly so. Representation of the member nation-states within the decision-making structures of the supra-national entity can ameliorate but cannot fully compensate for the resulting democracy losses suffered by those nation-states. More broadly, the benefits of dynamic incorporation must always be balanced against its costs, including the cost to self-governance.

New Issue: Revue Générale de Droit International Public

The latest issue of the Revue Générale de Droit International Public (Vol. 111, no. 4, 2007) is out. Contents include:

• Mathias Forteau, L’Etat selon le droit international: une figure à géométrie variable?
• Maurice Kamto, Le rôle des «accords et organismes régionaux» en matière de maintien de la paix et de la sécurité internationales à la lumière de la charte des nations unies et de la pratique internationale
• Bruno Poulain, Quelques interrogations sur le statut des traités bilatéraux de promotion et de protection des investissements au sein de l’union européenne
• Laurence Boisson de Chazournes & Makane Moïse Mbengue, A propos du principe du soutien mutuel. Les relations entre le Protocole de Cartagena et les Accords de l’OMC
• Laurent Sermet, Contribution à l’éclaircissement de la notion d’arrêt pilote et objectivisation du contentieux européen des droits de l’homme
• Théodore Christakis, Quel remède à l’éclatement de la jurisprudence CIRDI sur les investissements en Argentine? La décision du comité ad hoc dans l’affaire CMS c. Argentine

New Issue: Ocean Development & International Law

The latest issue of Ocean Development & International Law (Vol. 39, no. 1, 2008) is out. Contents include:

• Richard J. McLaughlin, Hydrocarbon Development in the Ultra-Deepwater Boundary Region of the Gulf of Mexico: Time to Reexamine a Comprehensive U.S.-Mexico Cooperation Agreement
• Yongil Jeon, Christopher Reid, & Dale Squires, Is There a Global Market for Tuna? Policy Implications for Tropical Tuna Fisheries
• David Rosenberg & Christopher Chung, Maritime Security in the South China Sea: Coordinating Coastal and User State Priorities
• Zou Keyuan, Law of the Sea Issues Between the United States and East Asian States
• Clive Schofield, Martin Tsamenyi, & Mary Ann Palma, Securing Maritime Australia: Developments in Maritime Surveillance and Security

New Issue: International Tax Journal

The latest issue of the International Tax Journal (Vol. 34, no. 1, January-February 2008) is out. Contents include:

• Robert F. van Brederode, Third-Party Risks and Liabilities in Case of VAT Fraud in the EU
• Nicholas J. DeNovio & Justin D. Stalls, The New Canadian Protocol
• Stella Cho, The Mainland of China and the Hong Kong SAR Double Taxation Arrangement - An Overview and Implications for Tax Planning

New Issue: Human Rights Law Review

The latest issue of the Human Rights Law Review (Vol. 8, no. 1, 2008) is out. Contents include:

• Rosemary Kayess & Phillip French, Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities
• Sabine Michalowski, Sovereign Debt and Social Rights-Legal Reflections on a Difficult Relationship
• Annemarie Devereux & Catherine Anderson, Reporting under International Human Rights Treaties: Perspectives from Timor Leste's Experience of the Reformed Process
• Lilian Chenwi, Putting Flesh on the Skeleton: South African Judicial Enforcement of the Right to Adequate Housing of Those Subject to Evictions

Christians, Dean, Ring, & Rosenzweig: Taxation as a Global Socio-Legal Phenomenon

Allison Christians (Univ. of Wisconsin - Law), Steven Dean (Brooklyn Law School), Diane M. Ring (Boston College - Law), & Adam H. Rosenzweig (Washington Univ., St. Louis - Law) have posted Taxation as a Global Socio-Legal Phenomenon (ILSA Journal of International and Comparative Law, forthcoming). Here's the abstract:

This essay makes a proposal that might be controversial among tax scholars even if it is non-controversial to those with a particular interest in international law: that international social and institutional structures shape, and are shaped by, historical and contemporary domestic policy decisions. As a result, tax law scholars must seek a broad framework for understanding the rapid changes that are taking place in tax policy and politics. Our aim in this essay is to further an emergent dialogue between tax law scholars and international law scholars about how law and institutions evolve and interact in a globally integrated system. We do so by offering four lines of inquiry that incorporate the lessons from multiple areas of scholarship, including international relations theory, sovereignty theory, political philosophy, political economy, and behavioral game theory, so as to begin to understand the changing pressures on taxation that are emerging as a result of the increasingly complex relationship between states, markets, and people in a globalized world.

Conference: R2P: The Responsibility to Protect: A Framework for Confronting Identity-based Atrocities

The Benjamin N. Cardozo School of Law Program in Holocaust and Human Rights Studies will host a conference on "R2P: The Responsibility to Protect: A Framework for Confronting Identity-based Atrocities," March 10-11, 2008, in New York City. The program is here. Why attend?

At the UN’s 60th Anniversary World Summit in 2005, one hundred and fi fty world leaders made an historic decision: to embrace The Responsibility to Protect (R2P) vulnerable populations outside their own states from genocide and other mass atrocities. UN member states committed themselves to “use appropriate diplomatic, humanitarian and other peaceful means…” to protect threatened populations. They also agreed to use force only as a last resort. The UN Security Council has since endorsed R2P in resolutions concerning the protection of civilians in armed conflict and peacekeeping in southern Sudan and Darfur.

The responsibility to protect doctrine is multidimensional. Simply, it requires that when a state is either unwilling or unable to fulfill its responsibility to protect its own populations, UN member states are obligated to take action to minimize human suffering. Most importantly, it involves the responsibility to prevent such atrocities from occurring, and if prevention fails, it requires states to react and rebuild.

The R2P doctrine is one of the most significant steps toward preventing genocide and other mass atrocities since the Nuremberg Trials. However, there has been little momentum to act on or even decide when we are facing an R2P situation. Moreover, R2P evolved in direct response to genocide and ethnic killings, and yet the ethnic dimensions of mass atrocities continue to be elided when contemplating the proper response; Iraq and Burma are but two examples. R2P’s application to identity-based issues of mass atrocities thus deserves special attention.

The conference seeks to provide a forum to conceptualize the normative legal and political content of R2P; to examine the R2P framework against identity-based atrocities including ethnic conflict and genocide and to address the political and operational challenges to the implementation of R2P. The proceedings will be published at a later date.

Workshop: Lowe on "Private Disputes and the Public Interest in International Law"

Vaughan Lowe (Univ. of Oxford - Law) will give a talk today at the University of Oxford Department of Politics and International Relations Lecture Series on Foundations of Governance in a Globalized World on "Private Disputes and Public Interest in International Law."

New Volume: Australian Year Book of International Law

The latest volume of the Australian Year Book of International Law (Vol. 26) is out. Contents include:

• Richard Falk, Toward Global Democracy: A Plea for Moral Globalisation
• Nicole Abadee & Donald R Rothwell, The Howard Doctrine: Australia and Anticipatory Self-Defence against Terrorist Attacks
• Michael Bliss, Amity, Cooperation and Understanding(s): Negotiating Australia's Entry into the East Asia Summit
• Hitoshi Nasu, Chapter VII Powers and the Rule of Law: The Jurisdictional Limits
• Shirley V Scott, The Participation of the Australian Government in International Debate on the Composition and Voting Procedure of the Security Council, 1945-2005
• Tania Voon & Andrew D Mitchell, Achieving a Common Market for Telecommunications Services in Australia and New Zealand
• John Tasioulas, Comment: Opinio Jurs and the Genesis of Custom: A Solution to the 'Paradox'

New Issue: Journal of International Arbitration

The latest issue of the Journal of International Arbitration (Vol. 25, no. 1, February 2008) is out. Contents include:

• Georgios I. Zekos, Antitrust/Competition Arbitration in EU versus U.S. Law
• Mauricio Gomm-Santos & Paul E. Mason, New Keys to Arbitration in Latin-America
• Julien Fouret, Denunciation of the Washington Convention and Non-Contractual Investment Arbitration: “Manufacturing Consent” to ICSID Arbitration?
• Alejandro Faya Rodriguez, The Most-Favored-Nation Clause in International Investment: Agreements A Tool for Treaty Shopping?
• Manuel A. Abdala & Pablo T. Spiller, Chorzów’s Standard Rejuvenated: Assessing Damages in Investment Treaty Arbitrations
• Weixia Gu, The China-Style Closed Panel System in Arbitral Tribunal Formation: Analysis of Chinese Adaptation to Globalization
• Diana Tapola, Enforcement Regimes and Grounds for Foreign Judgments and Awards in Russia
• Mauro Rubino-Sammartano, The Decision-making Mechanism of the Arbitrator vis-à-vis the Judge
• Peter B. Rutledge, Discovery, Judicial Assistance and Arbitration: A New Tool for Cases Involving U.S. Entities?
• Irina A. Pongracz & Ileana M. Smeureanu, A Procedural Road Map for the Recognition and Enforcement of Foreign Arbitral Awards in Romania