Turner: Defense Perspectives on Law and Politics in International Criminal Tribunals

Jenia Iontcheva Turner (Southern Methodist Univ. - Law) has posted Defense Perspectives on Law and Politics in International Criminal Trials (Virginia Journal of International Law, forthcoming). Here's the abstract:

As international criminal trials become more prominent, a fundamental question persists about their purposes: Are the goals of international criminal trials primarily legal, similar to the objectives of domestic trials, or are they primarily political, such as helping communities heal and compiling an accurate record of the past? Courts and commentators often acknowledge both legal and political purposes of international criminal trials, but fail to prioritize among them. This paper examines the purposes of international criminal trials through the perspectives of an overlooked, but important, participant in these trials¿the defense attorney. Through personal interviews, scholarly articles, and case law, I analyze the attorneys' motivations, strategies, and tactics in representing accused war criminals. In particular, I ask whether defense attorneys believe that international trials serve primarily adjudicative or primarily political purposes.

The survey finds that defense attorneys believe that these trials are much farther from being constructed primarily to satisfy political purposes and much nearer to being truly adjudicative proceedings whose crucial function is to separate those who are blameworthy from those who are not. Defense attorneys believe that a good number of their clients are innocent and that acquittals are possible. Their perceptions, I argue, are not merely inevitable products of their role, but are supported by an increasing number of acquittals, dismissals, and vigorous debates about liability doctrines and rules of procedure. Finally, and contrary to some perceptions, most defense attorneys do not view political statements or attacks as appropriate tactics in international criminal trials and instead focus on factual and legal challenges to the prosecution's case.

The perceptions of those who participate in the trials say something about what kind of proceedings these are. Even as international trials retain their unique political importance, the attitudes of those actually engaged in them reflect their character as increasingly adjudicative proceedings, with separation of the guilty from the innocent as the central purpose. Importantly, as key players in the trials, defense attorneys not only reflect, but also influence the proceedings, shifting them toward the adjudicative model.

Of course, fully contested, adversarial trials serve both legal and political purposes. But to the extent that these purposes occasionally come into conflict - where, for example, political purposes such as efficient closure and establishment of a historical record might recommend one set of procedures, and classic legal principles might recommend another - the debate becomes important. If international criminal trials increasingly serve the same adjudicative purposes as domestic trials, then the procedures of the tribunals and the actions of the participants will adjust accordingly. The perceptions of defense attorneys provide a signal that international criminal trials are moving in this direction.

Recent House Committee on Foreign Affairs Hearings

The House Committee on Foreign Affairs, particularly its Subcommittee on International Organizations, Human Rights, and Oversight, has held a number of international law-related hearings over the past several months. Here are the topics, prepared statements, and (when available) webcasts and transcripts.

• 3/4/2008
  Declaration and Principles: Future U.S. Commitments to Iraq
  Subcommittee on the Middle East and South Asia
  Subcommittee on International Organizations, Human Rights, and Oversight
  The Honorable Gary L. Ackerman, The Honorable Bill Delahunt , The Honorable David Satterfield, The Honorable Mary Beth Long [no prepared statement], Oona A. Hathaway, Esq., Lawrence J. Korb, Ph.D.
  Webcast
• 2/28/2008
  Status of Forces Agreements and UN Mandates: What Authorities and Protections Do They Provide to U.S. Personnel?
  Subcommittee on International Organizations, Human Rights, and Oversight
  The Honorable Bill Delahunt , Jennifer K. Elsea, Esq., R. Chuck Mason, Esq., Michael J. Matheson, Esq., Laura Dickinson, Esq., Ruth Wedgwood, Esq.
  Webcast
• 2/8/2008
  The November 26 Declaration of Principles: Implications for UN Resolutions on Iraq and for Congressional Oversight
  Subcommittee on International Organizations, Human Rights, and Oversight
  The Honorable Bill Delahunt , Oona A. Hathaway, Esq., Michael J. Glennon, Esq., Douglas Macgregor, Ph.D., Michael J. Matheson, Esq., Ruth Wedgwood, Esq.
• 1/23/2008
  The Proposed U.S. Security Commitment to Iraq: What Will Be In It and Should It Be a Treaty?
  Subcommittee on International Organizations, Human Rights, and Oversight
  Subcommittee on the Middle East and South Asia
  The Honorable Bill Delahunt , The Honorable Gary L. Ackerman , Kenneth Katzman, Ph.D., Michael J. Matheson, Esq., Michael Rubin, Ph.D.
  Transcript
  Webcast

Workshop: Berman

Paul Schiff Berman (Univ. of Connecticut - Law) will give a talk today at the University of Georgia School of Law International Law Colloquium on “Global Legal Pluralism.”

New Issue: Journal of World Intellectual Property

The latest issue of the Journal of World Intellectual Property (Vol. 11, no. 1, January 2008) is out. Contents include:

• Claudio Chiarolla, Plant Patenting, Benefit Sharing and the Law Applicable to the Food and Agriculture Organisation Standard Material Transfer Agreement
• Chidi Oguamanam, Local Knowledge as Trapped Knowledge: Intellectual Property, Culture, Power and Politics
• Joseph Straus, Is There a Global Warming of Patents?

Secretary-General's Second Report on the Special Tribunal for Lebanon

Pursuant to Security Council resolution 1757 (2007), the Secretary-General has issued his second report (S/2008/173) on the Special Tribunal for Lebanon. The report outlines the Tribunal's progress since September 2007 regarding, among others things, the location of the its seat; the appointment of the judges, the Prosecutor, the Deputy Prosecutor, the Registrar, and the Head of the Defence Office; the establishment of the Management Committee; and the transition from the International Independent Investigation Commission to the Tribunal. The Secretary-General's first report is here; background on the Tribunal and other documents can be found here.

New Issue: ASA Bulletin

The latest issue of the ASA Bulletin (Vol. 25, no. 4, 2007) is out. Contents include:

• Jean-François Poudret, Les recours au Tribunal fédéral suisse en matière d’arbitrage international (Commentaire de l’art. 77 LTF)
• Charles Price & Yves Stans, Using Costs as a Case Management Tool in International Arbitration
• Michael Schöll, Swiss Rules and ‘Domestic’ Arbitration – Why the Swiss Chambers Should Agree to Administer Domestic Cases under the Swiss Rules

New Issue: Arbitration International

The latest issue of Arbitration International (Vol. 24, no. 1, 2008) is out. Contents include:

• David D. Caron, et al., Transcript of the Seventeenth Annual Workshop of the Institute for Transnational Arbitration Addressing "International Treaty Arbitration in the 21st Century"
• Robert H. Smith & Tyler B. Robinson, E-Disclosure in International Arbitration
• Doug Jones, Party Appointed Expert Witnesses in International Arbitration: A Protocol at Last
• Nick Gallus, An Umbrella just for Two? BIT Obligations Observance Clauses and the Parties to a Contract
• Nicholas Pengelley, Albon v. Naza Motor Trading: Necessity for a Court to Find that there is an Arbitration Agreement Before Determining that it is Null and Void

Workshop: Bradley

Curtis Bradley (Duke Univ. - Law; Harvard Univ. - Law, visiting) will give a talk today at the Harvard Law School Faculty Workshop on "The Story of Ex parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization."

Sullivan: Rethinking Treaty Interpretation

Scott M. Sullivan (Univ. of Texas - Law) has published Rethinking Treaty Interpretation (Texas Law Review, Vol. 86, no. 4, p. 777, March 2008). Here's the abstract:

In this Article, Professor Sullivan examines the problem of Judicial deference to treaty interpretations by the Executive Branch. This problem has enormous implications for United States policy in conducting the "war on terror" as well as in dealing with an increasingly globalized world in which multinational treaties reach deeply into areas that have in the past been purely domestic concerns. In this context, the current judicial doctrine of giving "great weight" to executive-branch treaty interpretations is dangerously vague. The Judiciary's failure to explicate the contours of this test has led to confusing and irregular application of judicial deference. Professor Sullivan criticizes recent scholarly proposals to import the administrative law doctrine of Chevron deference into this area: he argues that such "fixed-point" approaches, although more disciplined than the current test, suffer from too much rigidity in their application and do not properly take into account unique issues arising in the context of treaty interpretations. He proposes that the new model of deference should look to the administrative law doctrine of Skidmore and argues that application of the Skidmore factors provides a flexible test that would allow the Judiciary to better calibrate the level of deference to underlying facts. Furthermore, this approach would best respect the institutional competencies of the Executive and Judicial Branches while preserving the balance between the values of judicial review and executive discretion in foreign affairs.

Sauer: Jurisdiktionskonflikte in Mehrebenensystemen

Heiko Sauer has published Jurisdiktionskonflikte in Mehrebenensystemen: Die Entwicklung eines Modells zur Lösung von Konflikten zwischen Gerichten unterschiedlicher Ebenen in vernetzten Rechtsordnungen (Springer 2008) ("Conflicts of Jurisdictions in Multi-level Systems"). Here's the abstract:

Der Verfassungsstaat befindet sich in einem Prozess überstaatlicher Rechtsverflechtung, die zum Aufeinandertreffen verschiedener Rechtsordnungen und zu zahlreichen Kollisions- und Konfliktsituationen führt. Insbesondere die Frage, welches Gericht anhand welcher Maßstäbe entscheidet, produziert zunehmend Konflikte zwischen Gerichten vernetzter Rechtsordnungen, die für die Verflechtungsprozesse erhebliche Bedrohungen darstellen. Die Arbeit legt eine Untersuchung des Phänomens rechtsebenenübergreifender Jurisdiktionskonflikte vor, die die "klassischen" Konflikte zwischen Bundesverfassungsgericht und Europäischem Gerichtshof, in die sich auch der Europäische Gerichtshof für Menschenrechte eingeschaltet hat, ebenso analysiert wie neu aufgetretene Problemfälle zwischen Bundesverfassungsgericht und Verfassungsgerichten der Länder oder Europäischem Gerichtshof und Streitbeilegungsorganen der Welthandelsorganisation. Dadurch wird eine für alle Mehrebenensysteme geltende Lösung de lege lata entwickelt, mit der bisherige ebenso wie künftige Konflikte gelöst werden können.

An English-language summary is available here.

Hathaway: Treaties' End: The Past, Present, and Future of International Lawmaking in the United States

Oona Hathaway (Yale Univ. - Law) has posted Treaties' End: The Past, Present, and Future of International Lawmaking in the United States (Yale Law Journal, forthcoming). Here's the abstract:

This Article makes the case that nearly everything that is done through the Treaty Clause can and should be done through congressional-executive agreements. In making this case, the Article examines the two separate tracks of U.S. international lawmaking through empirical, comparative, historical, and policy lenses. The empirical assessment calls into question prior claims about how the two instruments are used. The findings have implications for the longstanding debate over the "interchangeability" of treaties and congressional-executive agreements. The crossnational comparative analysis shows that United States is extraordinarily unusual in the way it makes international law. Indeed, the process for making international law that is outlined in the U.S. Constitution is close to unique. Together with the evidence about recent U.S. practice, these findings pose a puzzle: why does the United States have such an anomalous system for making international law? The Article next develops an historical account that provides some answers. It traces the current odd and unsatisfactory international lawmaking arrangement back to the Founding. The current system of international lawmaking in the United States rests on rules and patterns of practice developed in response to specific contingent events - events that for the most part have little or no continuing significance. Finally, the Article turns to examine the issue from the perspective of public policy. It shows that the Treaty Clause, besides having no strong legal or historical claim for priority today, is demonstrably inferior as a matter of U.S. public policy to congressional-executive agreements on nearly all crucial dimensions: ease of use, democratic legitimacy, and strength of the international legal commitments that are created. Finally, the Article concludes by presenting a vision for the future of international lawmaking in the United States that charts a course toward ending the Treaty Clause for all but a handful of international agreements. By gradually replacing most Article II treaties with congressional-executive agreements, policymakers can make America's domestic engagement with international law more sensible, more effective, and more democratic.

Opinio Juris is currently hosting a forum on Hathaway's article.

New Issue: Journal of International Criminal Justice

The latest issue of the Journal of International Criminal Justice (Vol. 6, no. 1, March 2008) is out. Contents include:

• Aaron Fichtelberg, Liberal Values in International Criminal Law: A Critique of Erdemović
• Payam Akhavan, Reconciling Crimes Against Humanity with the Laws of War: Human Rights, Armed Conflict, and the Limits of Progressive Jurisprudence
• Nehal Bhuta, Fatal Errors: The Trial and Appeal Judgments in the Dujail Case
• Symposium: Damaška's Faces of Justice and State Authority Revisited
• Bert Swart, Foreword
• Mario Chiavario, Some Considerations on Faces of Justice by a ‘Non-Specialist’
• Bert Swart, Damaška and the Faces of International Criminal Justice
• Notes and Comments
• Tobias Thienel, The ECHR in Iraq: The Judgment of the House of Lords in R (Al-Skeini) v. Secretary of State for Defence
• Guido Acquaviva, New Paths in International Criminal Justice?: The Internal Rules of the Cambodian Extraordinary Chambers

Kiderlen: Von Triest nach Osttimor

Hans F. Kiderlen has published Von Triest nach Osttimor: Der völkerrechtliche Rahmen für die Verwaltung von Krisengebieten durch die Vereinten Nationen (Springer 2008). Here's the abstract:

Die UN-Verwaltungen im Kosovo und Osttimor haben den Blick der Öffentlichkeit auf die Verwaltung von Krisengebieten durch die Vereinten Nationen gelenkt, die in eben diesen Gebieten alle drei Staatsgewalten auf sich vereint haben. Vor diesem Hintergrund legt der Autor umfassend die völkerrechtlichen Grundlagen und Grenzen einer Ausübung territorialer Hoheitsgewalt durch die Vereinten Nationen in Krisengebieten dar. Ausführlich werden dabei auch die praktischen Probleme einer Krisengebietsverwaltung, wie sie im Kosovo oder in Osttimor aufgetreten sind, einer rechtlichen Würdigung unterzogen.

Julia Vadala Taft

Our condolences to William Howard Taft, IV, and the entire Taft family on the passing of Julia Vadala Taft. Julia Taft was, among many things, a former assistant secretary of state for the Bureau of Population, Refugees, and Migration and a former director of the UN Bureau for Crisis Prevention and Recovery. She was, by all accounts, a remarkable person.

New Issue: Journal du Droit International

The latest issue of the Journal du Droit International ("Clunet") (Vol. 135, no. 1, Janvier-Février-Mars 2008) is out. Contents include:

• Doctrine
• Pascal de Vareilles-Sommières & Anwar Fekini, Les nouveaux contrats internationaux d'exploration partage de production pétrolière en Libye. Problèmes choisis (1re partie)
• Carine Brière, Le règlement (CE) no 864/2007 du 11 juillet 2007 sur la loi applicable aux obligations non-contractuelles (Rome II)
• Vèronique Huet, Les circonstances excluant l'illicèitè et le recours à la force
• Variétés
• Moustapha Lô Diatta, L'évolution des accords bilatéraux sur les travailleurs migrants
• Philippe Roussel Galle, De quelques pistes d'interprétation du règlement (CE) no 1346/2000 sur les procédures d'insolvabilité: la circulaire du 15 décembre 2006

Conference: Society of International Economic Law Inaugural Conference

The Society of International Economic Law's inaugural conference will take place July 15-17, 2008, at the Centre for Trade and Economic Integration at the Graduate Institute of International and Development Studies, Geneva. The draft program is here. I previously noted the call for papers here.

Jupille & Snidal: The Choice of International Institutions: Cooperation, Alternatives and Strategies

Joseph Jupille (Univ. of Colorado - Political Science) & Duncan Snidal (Univ. of Chicago - Public Policy & Political Science) have posted The Choice of International Institutions: Cooperation, Alternatives and Strategies. Here's the abstract:

We develop a framework that explains the choice of institutions to address international cooperation problems. We begin with boundedly rational actors who make institutional choices based on the properties of the cooperation problem they face and the menu of international institutions available to them. If the institutional status quo offers an appropriate venue for the prevailing cooperation problem, then actors will either use a focal institution or select a readily available alternative; if no suitable venue is available in the institutional status quo then costlier and riskier strategies of institutional change and creation will be pursued. The framework further allows us to incorporate the impact of international organizations and governance arrangements on the menu for institutional choice, to combine elements of rationalist and constructivist institutional accounts, and to address distributional and power considerations inherent to the choice of international institutions. The paper contains many empirical illustrations and is followed by a companion paper that applies the framework to the ongoing development of international institutions for financial reporting.

Gillies & Dahdal: Waiver of a Right to Arbitrate by Resort to Litigation, in the Context of International Commercial Arbitration

Peter S. Gillies (Macquarie Univ. - Law) & Andrew Dahdal (Macquarie Univ. - Law) have posted Waiver of a Right to Arbitrate by Resort to Litigation, in the Context of International Commercial Arbitration. Here's the abstract:

This paper examines the circumstances in which a party to an arbitration agreement may be deemed to have waived its right to arbitrate a dispute comprehended by the agreement, by involvement in litigation concerning this dispute. The focus is on the law in common law jurisdictions, particularly Australia and the United States of America. United Kingdom law will also be briefly surveyed. The paper focuses on the 2006 decision of the Australian Federal Court in Comandate Marine Corp v Pan Australia Shipping Pty Ltd, which afforded the topic significant treatment. The theoretical bases for sustaining waiver claims are analysed, including waiver as a discrete doctrine, abandonment, estoppel, election, repudiation of contract and variation of contract. The policies that underlie and inform the development of principles for testing waiver submissions are noted.

D'Amato: International Law as a Unitary System

Anthony D'Amato (Northwestern Univ. - Law) has posted International Law as a Unitary System. Here's the abstract:

When two states have a dispute, the other 188 states in the world are more than passive observers. They do not want the dispute to spread. They want the dispute to be resolved in a way that does not stimulate further related disputes. In brief, the uninvolved nations have an interest in peaceful conflict-resolution. That interest coincides with existing international law which is itself peace-seeking (international law shuns anarchy). International law is a coherent, complex, self-adapting, and purposive system; it makes its presence felt in all international disputes and controversies because it represents the aggregate interest of all the states not directly involved in a given dispute. There are many payoffs in conceptualizing international law as a system suggested in this paper, but by far the most important is to transfer zero-sum international wars and conflicts into n-person non-zero-sum games. These games involve maximin strategies of both conflict and cooperation. Indeed, they account for the vast amount of cooperation in the world - cooperation that accumulates over time even as disputes or wars cancel themselves out.

Kelly: International Law and the Shrinking Space for Politics in Developing Countries

J. Patrick Kelly (Widener Univ. - Law) has posted International Law and the Shrinking Space for Politics in Developing Countries (in Comparative Constitutionalism and Rights: Global Perspectives, forthcoming). Here's the abstract:

This article asks to what extent and by what processes should international legal norms be incorporated into domestic constitutions particularly in developing countries. It raises several concerns about the democratic legitimacy of many international legal norms and therefore about the wisdom of the developing countries incorporating international legal norms into domestic law without extensive political deliberation. The internationalization of constitutional interpretation rests on several problematic assumptions. First, proponents of internationalization of constitutional interpretation assume that several international norms, originally only human rights but now increasingly environmental norms, are universal and should be incorporated without specific democratic approval. Second, other international norms, delineated as customary international norms, are perceived to be formed by the consent of the world community of nations and are therefore obligatory.

The importation of international norms by developing countries is especially problematic because they have so little input into international norms and institutions. Developing countries are receivers of international law, not makers of international law. Such norms may be of questionable legitimacy in these societies, and may be inappropriate policy choices in countries at a different stage of economic development than more developed western countries.

My concern is that with globalization and the increased dominance of the western democracies in international law formation there has been a turn away from consent as the basis of international law making and towards "Naturalism." Premature international legalism takes normative development and sensible trade-offs out of the realm of both international and domestic politics without the necessary political deliberation. Rights have costs both in financial resources and political resources that should be assessed along with competing claims.

Danchin: International Law, Human Rights and the Transformative Occupation of Iraq

Peter Danchin (Univ. of Maryland - Law) has posted International Law, Human Rights and the Transformative Occupation of Iraq (in Great Expectations: The Role of International Law in Restructuring Societies After Conflict, forthcoming). Here's the abstract:

This chapter examines the project of transformative occupation undertaken by the United States and its allies following the invasion of Iraq in 2003. More specifically, it considers the Iraqi occupation in light of two competing sensibilities in international legal argument. On one view, which I term "legal formalism", the purpose of international law is eclectic, intersubjective and value-pluralist: to create the conditions for peaceful coexistence between different political orders and ways of life. This view is commonly associated with the liberalism of the United Nations Charter which posits both the subject of international law and its liberty in formal terms as "the state" and "sovereign equality" respectively. On a rival view, which I term "instrumental anti-pluralism", the purpose of international law is to project a universal regime based on a rationally reconstructed and universally authoritative morality. Here the identity of the sovereign as a subject of international law is understood in material terms as "the liberal democratic state" and sovereignty is understood as the equal treatment of legal subjects so defined. The chapter argues that that the attempt to transform the Iraqi constitutional structure via military occupation illustrates the complex dialectic between the formal and instrumental views, a dialectic that oscillates precariously between imperial imposition in the name of liberal democracy on the one hand, and a desperate attempt to secure internal legitimation for the new political order on the other. The role of international law in this process is ambiguous and paradoxical. On one hand, the law assumes an instrumentalist anti-formal guise facilitating the external project of imposing subjective material norms on a resistant political order. On the other hand, it provides a formal anti-instrumental site of deliberation, contestation and struggle critical to the internal project of the emergence of a distinctly Iraqi constitutionalism. The contradictions generated by this dialectic allow us to see how international law both constructs and mediates between certain "internal" and "external" forms of rationality.

Zacklin's Lauterpacht Lectures (Update)

On January 22, 23, and 24, 2008, Ralph Zacklin, former Assistant Secretary-General for Legal Affairs, United Nations, delivered the Sir Hersch Lauterpacht Memorial Lectures at the University of Cambridge. His topic was "The United Nations Secretariat and the Use of Force in a Unipolar World." Zacklin's "notes" (really the text of his lectures) are now available online here. An expanded version of the lectures will be published by Cambridge University Press.

New Issue: Journal of World Intellectual Property

The latest issue of the Journal of World Intellectual Property (Vol. 10, no. 6, November 2007) is out. Contents include:

• Carlos M. Correa, Patenting Human DNA: What Flexibilities Does the TRIPS Agreement Allow?
• Hamed El-Said & Mohammed El-Said, TRIPS-Plus Implications for Access to Medicines in Developing Countries: Lessons from Jordan–United States Free Trade Agreement
• Alpana Roy, A New Dispute Concerning the TRIPS Agreement: The United States and China in the WTO

Workshop: Shaffer

Gregory Shaffer (Loyola Univ., Chicago - Law) will give a talk today at the University of Georgia School of Law International Law Colloquium on “A Structural Theory of WTO Dispute Settlement: Why Institutional Choice Lies at the Center of the GMO Case.”

Treaty Transmittal: Protocol Amending the 1980 Tax Convention with Canada

On Thursday, March 13, the President transmitted to the Senate, for its advice and consent to ratification, the Protocol Amending the Convention Between the United States of America and Canada with Respect to Taxes on Income and on Capital done at Washington on September 26, 1980, as Amended by the Protocols done on June 14, 1983, March 28, 1984, March 17, 1995, and July 29, 1997, signed on September 21, 2007, at Chelsea. The transmittal package (Treaty Doc. 110-15) is here. According to the transmittal letter: "The proposed Protocol would eliminate withholding taxes on cross-border interest payments. In addition, the proposed Protocol would coordinate the tax treatment of contributions to, and other benefits of, pension funds for cross-border workers. The proposed Protocol also includes provisions related to the taxation of permanent establishments, so-called dual-resident corporations, income derived through certain entities that are considered fiscally transparent, and former U.S. citizens and long-term residents. The proposed Protocol further strengthens the existing Treaty's provisions that prevent the Treaty's inappropriate use by third-country residents. The proposed Protocol also provides for mandatory resolution of certain cases before the competent authorities."