Shaffer: A New Legal Realism: Method in International Economic Law Scholarship

Gregory Shaffer (Loyola University, Chicago - Law) has posted the abstract of A New Legal Realism: Method in International Economic Law Scholarship (in International Economic Law - The State & Future of the Discipline, forthcoming). Here's the abstract:

This paper provides a typology and brief assessment of four varieties of international law scholarship: formalist/doctrinal, normative/activist, theoretical/analytical, and empirical. It then develops an argument about the particular importance of empirical work from a "new legal realist" orientation. The paper contends that the distinctive features of a new legal realist approach are its commitment to empirical work, in particular of a qualitative nature, its engagement with critical analysis, and its commitment to translating empirical findings for a legal policy audience. This translation takes two forms. The paper situates "new legal realism" in relation to the original legal realist movement in the United States. A larger work-in-progress addresses its relation to the predominant theoretical perspectives on international law that have emerged.

Baylis: Reassessing the Role of International Criminal Law: Rebuilding National Courts through Transnational Networks

Elena A. Baylis (Univ. of Pittsburgh - Law) has posted Reassessing the Role of International Criminal Law: Rebuilding National Courts through Transnational Networks. Here's the abstract:

This Article argues that transnational networks of UN officers, NGOs, embassy officials, and local judges and attorneys offer an effective way for the international community to contribute to justice in post-conflict states by supporting national trials, facilitating the use of international criminal law, and investing in the national court system. I consider the role of international criminal law in post-conflict justice through an appraisal of the first national courts to use the International Criminal Court's Rome Statute directly in trials for war crimes and crimes against humanity. International criminal law was not incorporated into these cases through traditional mechanisms, such as legislative implementation or consideration of international jurisprudence, or even through the direct involvement of the ICC. Rather, the use of international law and the trials themselves were spurred by the work of transnational networks on the broader goals of post-conflict justice and rebuilding the national justice system. Theories of international lawmaking, such as theories of global governance, transnational networks, transnational legal process, policy-oriented jurisprudence, and legal pluralism, focus our attention on the critical aspects of these networks that enabled them to convey international law effectively in a chaotic post-conflict context, in particular, hybrid processes and domestic control. I do not suggest that the international community should support all national trials without distinction, but I do contend that it is only by investing in weak, corrupt, and deeply flawed national courts that the international community can promote what should be the ultimate goal of post-conflict justice efforts: rebuilding national justice systems. All in all, these cases suggest a model for international involvement in post-conflict justice. Key characteristics include: (1) reliance on transnational networks to convey international criminal law and resources into national settings; (2) hybrid processes in which international actors play a supporting role; and (3) integration of international support for atrocity trials into broader efforts to rebuild national judicial systems.

Conference: International Law in the English Legal System (Update)

I previously reported that the British Institute of International and Comparative Law and the Society of Legal Scholars Public International Law Group will host their 17th Conference on Theory and International Law, April 14, 2008, in London. The topic is "International Law in the English Legal System." The program is now available:

Session 1: Non-Justiciability and Act of State

• Matthew Happold (University of Hull) (Chair)
• Dapo Akande (University of Oxford): “Non-Justiciability and the Foreign Act of State Doctrine in English Law”
• Amanda Perreau-Saussine (University of Cambridge): “British Acts of State Abroad in British Courts”

Session 2: The Legal Effects of Unincorporated Treaties and Other International Instruments

• Paul Eden, University of Sussex) (Chair)
• Anthony Aust (London School of Economics): “Al-Jedda Changes Nothing”
• James Harrison (University of Edinburgh): “Treaty Interpretation and the Use of International Law by United Kingdom Courts”
• Bharat Malkani (University of Bristol): “An Exception to the Rule: The Application of Human Rights Treaties in English Courts”

Session 3: Customary International Law in English Law

• Colin Warbrick (University of Birmingham) (Chair)
• Patrick Capps (University of Bristol): “Customary International Law in English Courts: A Restatement”
• Roger O’Keefe (University of Cambridge): “The Doctrine of Incorporation Revisited”

Session 4: International Law, Human Rights and English Law

• Elizabeth Wilmshurst (Chatham House) (Chair)
• Ed Bates (University of Southampton): “State Immunity for Torture”
• Lorna McGregor (Redress): title tbc
• Phoebe Okowa (Queen Mary, University of London): “Diplomatic Protection in English Law: The Guantanamo Bay Experience”

Workshops: Carrozza, Cogan

Paolo Carrozza (Univ. of Notre Dame - Law) will give a talk today at the Georgetown Law Center International Human Rights Colloquium on "The 'Art' of Democracy and the 'Taste For Local Freedom': International Human Rights and the American Constitutional Difference."

Jacob Katz Cogan (Univ. of Cincinnati - Law) will give a talk today at Boston College Law School on "Representation and Power in International Organization: The Current Constitutional Crisis."

Patel: India and International Law

Bimal N. Patel (Organisation for the Prohibition of Chemical Weapons) has published Volume 2 of India and International Law (Martinus Nijhoff Publishers 2008). Here's the abstract:

India and International Law, volume 2 examines India’s policy and practical approach to modern and emerging subjects such as energy, investment, sports, banking, biotechnology, taxation, water courses, feminism, air law and role of India in UN reforms. The most discussed interlinked issues of civilian nuclear energy and nuclear weapons are analysed in two separate chapters. This volume also examines legal challenges and offers possible solutions in the area of private international law, which hopefully would serve the purposes of relevant policy-makers, judiciary, common men and women and 2.5 million Non-Resident Indians (NRIs).

India and International Law, volume 2 will enable the readers to realize the sheer magnitude of legal challenges faced by India, hence, one way forward is to consider some of the suggestions offered by the authors. It is hoped that these two volumes will provide a useful framework for similar studies and will remain a must source of consultation for those who are interested in India’s state practice on international law.

Contents include:

• Bimal N. Patel, Introduction
• Amal K. Ganguli, Interface between International Law and Municipal Law: Role of the Indian Judiciary
• Bimal N. Patel, India and the UN Reforms
• Priya Pillai, India and the Nuclear Weapons Proliferation
• Fakiha Khan, India and the International Law of Civilian Nuclear Energy
• G.N. Sinha, India and International Energy Law
• Krishnendu Mukherji, Climate Change, Energy Law and India
• Autar Krishen Koul & Mihir Chatterjee, International Financial Institutions and Indian Banking: A Legal Profile
• A. Lakshminath, Patent Laws in India: One Step Forward and Two Steps Backward
• Devashish Krishan, India and International Investment Laws
• Shannu Narayan, Bilateral Tax Treaties: A Review of Indian Laws
• R. Rajesh Babu, Combating Public Corruption in India and the United Nations Convention against Corruption
• K. Sriram, Sports Broadcasting Regulations and India
• V.S. Elizabeth, Feminism and International Law in India
• B.C. Nirmal, Violence against Women: International and National Human Rights Jurisprudence
• Jaydeepsinh G. Vaghela, Judiciary of India and the Implementation of International Environmental Law in India: Some Remarks
• Kondaiah Jonnalagadda, Jurisdictional Issues in the Enforcement of Foreign Divorce Decrees in India
• Anil Malhotra & Ranjit Malhotra, Family Laws and Religion – An Indian Experience
• Bimal N. Patel, Concluding Remarks
• Bhandary M. Leeladhara, Status of India: Signature and Ratification of Multilateral Treaties Deposited with the United Nations Secretary-General as of 20 July 2007
• Bimal N. Patel, Select Bibliography

Workshop: Fletcher, Koskenniemi

George Fletcher (Columbia Univ. - Law) will give a talk today at the Columbia University Law School Faculty Lunch Series on "Correcting Evil: Tort Liability for Civil Rights Abuse."

Martti Koskenniemi (Univ. of Helsinki - Law & New York Univ. - Law) will give a talk today at the New York University Institute for International Law and Justice International Legal Theory Colloquium on "International Law and Raison D’état; Rethinking the Prehistory of International Law."

Posner: Human Welfare, Not Human Rights

Eric A. Posner (Univ. of Chicago - Law) has posted Human Welfare, Not Human Rights. Here's the abstract:

Human rights treaties play an important role in international relations but they lack a foundation in moral philosophy and doubts have been raised about their effectiveness for constraining states. Drawing on ideas from the literature on economic development, this paper argues that international concern should be focused on human welfare rather than on human rights. A focus on welfare has three advantages. First, the proposition that governments should advance the welfare of their populations enjoys broader international and philosophical support than do the various rights that are incorporated in the human rights treaties. Second, the human rights treaties are both too rigid and too vague - they do not allow governments to adopt reasonable policies that advance welfare at the expense of rights, and they do not set forth rules governing how states may trade off rights. A welfare treaty could provide guidance by supplying a maximand along with verifiable measures of compliance. Third, the human rights regime and international development policy work at cross-purposes. Development policy favors the poorest states, while the human rights regime condemns the states with the worst governments: unfortunately, the poorest states usually have the worst governments. Various possible welfare treaties are surveyed.

Gopalan: A Demandeur-Centric Approach to Regime Design in Transnational Commercial Law

Sandeep Gopalan (Arizona State Univ. - Law) has posted A Demandeur-Centric Approach to Regime Design in Transnational Commercial Law. Here's the abstract:

Recent scholarship on international agreement design has almost exclusively focused on the public international law area. The literature on regime design in the area of international private law lacks a solid theoretical foundation. Academic writing on public international law's state-centric approach is only amenable to crude transplantation and poses several puzzles in the international private law context. Resolving these puzzles is important because of the proliferation of transnational commercial agreements in areas that were traditionally the province of domestic law. This paper attempts to provide a starting point to address the theoretical vacuum. Part I argues that functionalist, liberal, and realist theories cannot fully explain transnational commercial law agreement design. Part II puts forth a demandeur-centric approach with the aid of examples that span the spectrum from hard law to soft law. Part III concludes that agreement design in transnational commercial law is premised on demandeur preferences and relative power.

Workshop: Guilfoyle

Douglas Guilfoyle (University College London - Law) will give a talk today at University College London as part of the International Law Association British Branch seminar series. The subject is: "Policing the High Seas: Concurrent Jurisdictions, Immunity and State Responsibility."

New Issue: Chinese Journal of International Law

The latest issue of the Chinese Journal of International Law (Vol. 7, no. 1, March 2008) is out. Contents include:

• Rein Müllerson, Promoting Democracy without Starting a New Cold War?
• Michelle Burgis, Discourses of Division: Law, Politics and the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
• Cheng Yan Ki Bonnie, Implementing Security Council Resolutions in Hong Kong: An Examination of the United Nations Sanctions Ordinance
• Sienho Yee, Towards a Harmonious World: The Roles of the International Law of Co-progressiveness and Leader States
• Wang Haiping, Comments on the 2007 Draft Manual on International Humanitarian Law in Air and Missile Warfare
• Gao Jianjun, Reasonableness of the Bond under Article 292 of the LOS Convention: Practice of the ITLOS
• Lu Song, The EOS Engineering Corporation Case and the Nemo Debet Bis Vexari Pro Una et Eadem Causa Principle in China
• Bernhard Hofstötter, Cyprus under British Rule: An International Law Analysis of Certain Land Surveys and Land Assignments Between 1878 and 1955

Paris: The Sun Climbs Slow: Justice in the Age of Imperial America

Erna Paris has published The Sun Climbs Slow: Justice in the Age of Imperial America (Knopf Canada 2008). Here's the abstract:

A powerful investigation of the story and individuals behind America’s refusal to acknowledge international law and an inquiry into the urgent role of international criminal justice from the award-winning, bestselling author of Long Shadows.

In this groundbreaking investigation, Erna Paris explores the history of global justice, the politics behind America’s opposition to the creation of a permanent international criminal court, and the implications for the world at large.

At the end of the twentieth century, two extraordinary events took place. The first was the end of the Cold War, which left the world with a single empire that dominated global affairs with a ready fist. The second event was the birth of the International Criminal Court - the first permanent tribunal of its kind. The ICC prosecutes crimes against humanity, war crimes and genocide. Its mandate is to confront impunity and demand accountability for the worst crimes known.

But on March 11, 2003, when the new court was inaugurated in a moving ceremony, one country was conspicuously missing from the celebrations. The government of the United States had made it clear that the International Criminal Court was not consistent with American goals and values.

The Sun Climbs Slow grapples with an emerging dilemma of the twenty-first century: the tension between unchallenged political power and the rule of international law.

Lowe: The Place of Dr. Thomas Baty in the International Law Studies of the 20th Century

Vaughan Lowe (Univ. of Oxford - Law) has posted The Place of Dr. Thomas Baty in the International Law Studies of the 20th Century. Here's the abstract:

Thomas Baty, an English lawyer who became Legal Adviser to the Japanese Foreign Ministry during the first half of the twentieth century, is one of the most intriguing figures in international law. This paper examines his life and his remarkable body of writing.

New Issue: International & Comparative Law Quarterly

The latest issue of the International & Comparative Law Quarterly (Vol. 57, no. 1, January 2008) is out. Contents include:

• Harry McVea, Hedge Fund Asset Valuations and the Work of the International Organization of Securities Commissions (IOSCO)
• Gilles Cuniberti, The Recognition of Foreign Judgments Lacking Reasons in Europe: Access to Justice, Foreign Court Avoidance, and Efficiency
• Aurel Sari, The Conclusion of International Agreements by the European Union in the Context of the ESDP
• Daniel Thym, Respect for Private and Family Life Under Article 8 ECHR in Immigration Cases: A Human Right to Regularize Illegal Stay?
• Stephanie Switzer, Environmental Protection and the Generalized System of Preferences: A Legal and Appropriate Linkage?
• Stefaan Smis & Sevidzem Stephen Kingah, The Utility of Counter-Terrorism and Non-Proliferation of WMD Clauses Under the EU-ACP Revised Cotonou Agreement
• Tarcisio Gazzini, Can Authoritative Interpretation Under Article IX:2 of the Agreement Establishing the WTO Modify the Rights and Obligations of Members?

Keenan: Financial Globalization and Human Rights

Patrick Keenan (Univ. of Illinois - Law) has posted Financial Globalization and Human Rights (Columbia Journal of Transnational Law, forthcoming). Here's the abstract:

In this Article, I develop a model of the enforcement of human rights that attempts to account for financial globalization. I advance two principal arguments. First, I argue that, in practical terms, the traditional approach to protecting human rights, documenting violations of human rights to embarrass states into changing their ways, is becoming much less likely to succeed. This reputational approach, often referred to as naming and shaming, has long been the primary mechanism of enforcing human rights norms. Shaming was sometimes accompanied by a form of economic shunning, with countries who violated human rights norms finding it more difficult to find trading partners in the developed world. The rapid economic growth that is characteristic of globalization, particularly in China and India, has altered this dynamic. Increased competition for the raw materials necessary to sustain economic growth has rendered it more difficult to ignore resource-rich states, even if they are regular violators of human rights. Many states no longer face a powerful incentive to maintain a good reputation for compliance with human rights norms. Second, I argue that as the reputations of states have become less critical, the reputations of corporations have become more important. Two relatively new features of financial globalization have changed the picture and created incentives for firms to act as the watchdogs of other firms. The market for capital is now global. It is only a slight exaggeration to say that firms everywhere are competing for the same investors. Similarly, it is no exaggeration to say that firms from around the world are selling their products in the same markets. Thus, as capital and consumer markets have become more integrated, firms now face powerful incentives to police the human rights conduct of their rivals.

Keenan: Do Norms Still Matter? The Corrosive Effects of Globalization on the Vitality of Norms

Patrick Keenan (Univ. of Illinois - Law) has posted Do Norms Still Matter? The Corrosive Effects of Globalization on the Vitality of Norms (Vanderbilt Journal of Transnational Law, forthcoming). Here's the abstract:

Why does the process of globalization undermine the power of social norms to regulate behavior? Norms are the social regularities that shape individual behavior and help to create vibrant, or dysfunctional, communities. Most theories of norms do not account for the many ways that globalization affects the foundations of norms. This article fills the gap by developing a more robust theory of the informal regulation of behavior that considers the ways that the process of globalization can interfere with the creation of norms and erode their power. I defend three primary claims. First, I argue that because individuals in a globalizing community typically suffer from significant disruptions in relationships, the community's ability to regulate itself is eroded. In vibrant communities, residents are willing to intervene in the lives of their neighbors by, for example, scolding children who misbehave in public or teenagers who deface buildings. But in a globalizing community, the conditions that give rise to this willingness to intervene are eroded by the process of globalization. Second, I argue that globalization can distort the process of creating and enforcing social norms by allowing individuals to, in effect, immunize themselves from the sanctions typically employed to enforce norms. For example, differences in social status affect the ways that observers judge illicit behavior, and the ways that they condemn, condone, or ignore that behavior. Third, I argue that globalization also makes it possible for individuals to engage in what I call reputational segmentation. In this process, people who wish to engage in an activity that carries social sanctions do so in a place where they are immune to the real effects of those sanctions. For example, a Western tourist who travels to the developing world to engage in illicit sexual activity, often with children, may suffer social sanctions in the destination community, but those sanctions do not follow him back to his country of origin. And because the quality of the person's life is affected almost entirely by his reputation in his country of origin, the ability to engage in reputational segmentation allows him to escape the consequences of his actions.

Conference: Remedies in Commercial, Investment, and Energy Arbitrations

The Permanent Court of Arbitration, the Houston International Arbitration Club, Inc., & the University of Texas School of Law will host a conference on "Remedies in Commercial, Investment, and Energy Arbitrations," April 17-18, 2008, in Houston. The program is available here. Why attend?

What can the arbitrator do in fashioning remedies in commercial, investment and energy arbitrations? This program — jointly sponsored by the Permanent Court of Arbitration (PCA), the Houston International Arbitration Club (HIAC), and The University of Texas School of Law — brings together an internationally-renowned faculty from Europe, Latin America, Canada and the U.S., in a special conference focused on the law, economics, advocacy and enforcement of remedies in commercial and investment cases. The conference blends analysis with practical application of economic and legal principles to solve real problems facing the international energy and construction sectors. Keynote speaker V.V. "Johnny" Veeder leads a distinguished opening panel that examines these issues, and also delivers the keynote luncheon address on Thursday. The conference ends with a distinguished General Counsel’s panel, including counsel from Exxon Mobil, ConocoPhillips, Baker Hughes, and Grupo ICA. Don’t miss this unique and valuable program!

New Issue: Netherlands Quarterly of Human Rights

The latest issue of the Netherlands Quarterly of Human Rights (Vol. 25, no. 4, 2007) is out. Contents include:

• Anat Scolnicov, Women and Religious Freedom: A Legal Solution to a Human Rights Conflict?
• Nicholas Gibson, An Unwelcome Trend: Religious Dress and Human Rights Following Leyla Sahin vs Turkey
• David Keane, Attacking Hate Speech under Article 17 of the European Convention on Human Rights