- Nolwenn Guibert & Tilman Blumenstock, The First Judgement of the Special Court for Sierra Leone: A Missed Opportunity?
- Fabián O. Raimondo, General Principles of Law as Applied by International Criminal Courts and Tribunals
- Céline Folsché, The Challenges Faced by the Iraqi High Tribunal: The Dujail Trial
- Daniel Müller, Procedural Developments at the International Court of Justice
Saturday, April 26, 2008
Friday, April 25, 2008
- Special Number on Arbitration in the Arab World
- Nadia Darwazeh & Ahmed Sadek El-Kosheri, Arbitration in the Arab World: An Interview with Professor Ahmed Sadek El-Kosheri
- Essam Al Tamimi & Emma van Son, The DIAC Rules and the New U.A.E. Arbitration Law
- Omar M.H. Aljazy, Arbitration in Jordan: From Old to New
- Lari Hammoud & Sami Houerbi, ICC Arbitration in the Arab World
- Ahmed Ouerfelli, Enforcement of Foreign Arbitral Awards in Maghreb Countries
- Robert T. Annacker, Claudia Greig, & Roland Ziadé, How Bilateral Investment Treaties Can Protect Foreign Investors in the Arab World or Arab Investors Abroad
- Jalal El Ahdab & Ruth Stackpool-Moore, Arab Arbitration v. International Arbitration? The Case for a Reconciliation
- Abdulhay Sayed, Towards a Reflexive Sociology of the Arbitration Field in the Arab World
- Mary Keyes, Statutes, Choice of Law, and the Role of Forum Choice
- Zheng Tang, The Interrelationship of European Jurisdiction and Choice of Law in Contract
- Charles T. Kotuby, Jr., Private International Law before the United States Supreme Court: Recent Terms in Review
- Monika Pauknerova, Private International Law in the Czech Republic: Tradition, New Experience and Prohibition of Discrimination of Grounds of Nationality
- Nadia Cerasela Dariescu & Cosmin Dariescu, The Difficulties of Solving Litigation Concerning the Patrimonial Effects of a Marriage Between an Italian Citizen and a Romanian Citizen
Alastair Sutton (White & Case, Brussels) will give a talk today at the Lauterpacht Centre for International Law on "The Evolving Legal Status of UK Crown Dependencies under UK, European and International Law."
Thursday, April 24, 2008
The International Journal of Transitional Justice will be publishing an issue on ‘Transitional Justice and Development’ as its special issue of 2008.
It is widely acknowledged that the relationship between peace-building, transitional justice and development is one that is characterized by mutual dependence in the aftermath of conflict or repression; it is not possible to achieve any one of these goals in isolation from the others.
In the same way that uneven or underdevelopment can be a contributing factor to conflict and cycles of violence, conflict in turn disproportionately affects the poorest within societies as well as destroying or undermining the institutions of governance that are meant to implement state programmes, protect citizens and regulate access to state resources. Transitional justice mechanisms function in this immediate post-conflict environment and share both overlapping as well as mutually dependent goals with many development programmes. For example, development can only sustainably take root in countries with inclusive governance structures and respect for the rule of law; goals that transitional justice mechanisms also seek to address.
The very nature of underdevelopment and poverty creates unique challenges to the goals of transitional justice - in particular how to pursue justice in a context of scarce resources where there may be a tension between ‘dealing with the past’ and building the physical and social infrastructure needed for the future.
In an effort to bridge the gap between the fields of transitional justice, development and peace building, the International Journal of Transitional Justice invites pieces dealing with the theoretical, practical and policy angles of the relationship between transitional justice and development.
Possible topics include (but are not limited to):
• Establishing good governance through institutional reform post-conflict;
• Accountability for economic and social rights violations;
• The relationship between past conflict and current underdevelopment;
• Redress for targeted underdevelopment as a weapon of conflict;
• Accountability for economic crimes;
• Accountability for non-state actors and economic crimes;
• Reconciliation and development;
• Gender, transitional justice and development;
• The relationship between reparations and development;
• Challenges posed by inequality and underdevelopment to the reintegration of victims, combatants and the forcibly displaced;
• The relationship of transitional justice processes to international development;
• Transitional justice and post-conflict development;
• Transitional justice and international NGOs;
• Transitional justice and domestic legal systems;
• World Bank policies in post-conflict countries and Transitional Justice;
• Health development and Transitional Justice;
• Economic, cultural and social rights and Transitional Justice;
• Poverty and economic development programmes as distributive justice or reparations;
• Security sector reform, rule of law and development;
• The role of justice in post-conflict economic reconstruction;
• The relationship between conflict-sensitive development and reconciliation at a local level.
Authors who would like to submit a paper for consideration should do so by June 15, 2008, at http://www.ijtj.oxfordjournals.org/.
For further information or enquiries please mailto:firstname.lastname@example.org.
- Articles on the Polar Regions
- Rosemary Rayfuse, Protecting Marine Biodiversity in Polar Areas Beyond National Jurisdiction
- Timo Koivurova, Alternatives for an Arctic Treaty Evaluation and a New Proposal
- Julia Jabour & Melissa Weber, Is it Time to Cut the Gordian Knot of Polar Sovereignty?
- David Leary, Bi-polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as well as for Antarctica?
- Peter H. Sand, Japan's ‘Research Whaling’ in the Antarctic Southern Ocean and the North Pacific Ocean in the Face of the Endangered Species Convention (CITES)
- Henrik Selin & Noelle Eckley Selin, Indigenous Peoples in International Environmental Cooperation: Arctic Management of Hazardous Substances
- Kees Bastmeijer, Machiel Lamers, & Juan Harcha, Permanent Land-based Facilities for Tourism in Antarctica: The Need for Regulation
- Peter Bridgewater, A New Context for the Ramsar Convention: Wetlands in a Changing World
- Bjorn Hansen & Mark Blainey, Registration: The Cornerstone of REACH
- Andrew G. Brown & Robert M. Stern, What are the issues in using trade agreements to improve international labor standards?
- Tracey Epps, Reconciling public opinion and WTO rules under the SPS Agreement
- Valentin Zahrnt, Domestic constituents and the formulation of WTO negotiating positions: what the delegates say
- Mateo Diego-Fernández, Trade negotiations make strange bedfellows
The number of international human rights regimes has risen dramatically in recent decades, as has the number of countries that are party to at least one of them. This development has sparked a heated debate over why states choose to enter regimes designed to establish and monitor compliance with human rights standards. In this paper, we argue that entering a human rights regime can yield substantial benefits for states in the midst of a democratic transition. Emerging democracies can use the sovereignty costs stemming from participation in such a regime to lock in liberal policies and to signal their intention to consolidate democratic institutions and practices. Moreover, nascent democracies often respond to inducements from other more established democracies to join such organizations. These states are more likely than others to seek out and accept the sovereignty costs arising from human rights regimes. In addition to democratizing countries, stable democracies may also enter these regimes in response to domestic political pressures and in support of broader foreign policy goals. Using a new data set on human rights regimes, we generate some of the first cross-national evidence on why states seek membership. Our results reveal that states engaged in a democratic transition are most likely to join human rights IOs. Stable democracies are less likely than democratizing countries and there is only scattered evidence that democracies are more likely than other states to enter such organizations. These results accord with our argument that human rights IOs impose greater sovereignty costs on members than treaties, creating incentives for democratizing states that want to promote human rights at home to enter such organizations. By contrast, there is little variation in the extent to which different types of governments join UN human rights treaties because membership imposes fewer costs on the participating countries.
Are foreign investors the privileged citizens of a new constitutional order that guarantees rates of return on investment interests? Schneiderman explores the linkages between a new investment rules regime and state constitutions – between a constitution-like regime for the protection of foreign investment and the constitutional projects of national states. The investment rules regime, as in classical accounts of constitutionalism, considers democratically authorized state action as inherently suspect. Despite the myriad purposes served by constitutionalism, the investment rules regime aims solely to enforce limits, both inside and outside of national constitutional systems, beyond which citizen-driven politics will be disabled. Drawing on contemporary and historical case studies, the author argues that any transnational regime should encourage innovation, experimentation, and the capacity to imagine alternative futures for managing the relationship between politics and markets. These objectives have been best accomplished via democratic institutions operating at national, sub-national, and local levels.
(Note to conference organizers: My invitation must have gotten lost in the mail. Please re-send!)
Rachel Brewster (Harvard Univ. - Law) will give a talk today at the Temple University School of Law International Law Colloquium on "Renegotiation and Reinterpretation of Treaties."
Erica de Wet (Univ. of Amsterdam - Law) will give a talk today at the University of Oxford Public International Law Discussion Group on "Holding the UN Security Council Accountable for violations through Domestic and Regional Courts: A Case of be Careful what you wish for?"
Stephen Gardbaum (Univ. of California, Los Angeles - Law) will give a talk today at the New York University Institute for International Law and Justice International Legal Theory Colloquium on "The Myth and the Reality of American Constitutional Exceptionalism."
Ruti Teitel (New York Law School) will give a talk today at the Yale Law School Human Rights Workshop on "Humanity's Law."
Wednesday, April 23, 2008
This Article offers a coherent way of thinking about double jeopardy rules among sovereigns. Its theory has strong explanatory power for current double jeopardy law and practice in both U.S. federal and international legal systems, recommends adjustments to double jeopardy doctrine in both systems, and sharpens normative assessment of that doctrine.
The Article develops a jurisdictional theory of double jeopardy under which sovereignty signifies independent jurisdiction to make and apply law. Using this theory, the Article recasts the history of the U.S. Supreme Court's dual sovereignty doctrine entirely in terms of jurisdiction, penetrating the opacity of the term sovereign as it is often deployed by the Court and supplying a useful analytical predictor for future extension of the doctrine. The Article then applies the theory to the international legal system to explain the confused and seemingly dissonant body of modern international law and practice on double jeopardy, including the international law of human rights and extradition, international criminal tribunal statutes, and the exercise of universal jurisdiction.
The Article next explores the theory's implications for U.S and international law in light of two main double jeopardy concerns: the individual right to be free from multiple prosecutions and the sovereign ability to enforce law. It argues that since the U.S. dual sovereignty doctrine originally derived and continues to derive justification from the sovereign's jurisdiction over the defendant, the Court's present analysis is incomplete and betrays the doctrine's own foundations by ignoring a basic, and necessary, constitutional inquiry: whether a successively prosecuting sovereign's exercise of jurisdiction satisfies due process. This inquiry would enrich present doctrine by incorporating individual rights concerns - concerns that now are completely absent from dual sovereignty analysis - and holds the potential to alter outcomes, especially in the contexts of successive prosecutions between U.S. states and by the federal government when it exercises jurisdiction extraterritorially. The theory similarly enriches international doctrine through a reasonableness evaluation of a successively prosecuting nation-state's jurisdiction that resembles U.S. due process tests. Finally, the Article suggests that where multiple sovereigns legitimately may exercise jurisdiction it does not mean that they will; institutionalized comity mechanisms between enforcement authorities of different sovereigns can accommodate both the sovereign interest to enforce law and the individual interest to be free from multiple prosecutions by encouraging the representation of multiple sovereigns' interests in a single prosecution in a single forum.
The international institutions that have governed global trade since the end of World War II have lost their effectiveness, and global trade governance is fractured. The need for new institutions is obvious, and yet, few proposals seem to be on offer. The key to understanding the global trading order lies in uncovering the relationship between trade and the State, and how the inner constitution of Statecraft drives the architecture of the global order and requires structural changes as the State traverses successive cycles. The current trade order, focused on the liberalization of trade in goods and services and the management of related issues, is predicated on policies and practices that were the product of a global trading order of the 20th-century modern nation-states. Today, a new form of the State – the post-modern State – is evolving. In this book, the authors propose a new trade norm – the enablement of global economic opportunity – and a new institution – the Trade Council – to overhaul the global trading order.
The Principles and Practice of International Commercial Arbitration provides the reader with immediate access to understanding the world of international arbitration. Arbitration has become the dispute resolution method of choice in international transactions. This book explains how and why arbitration works. It provides the legal and regulatory framework for international arbitration, as well as practical strategies to follow and pitfalls to avoid. It is short and readable, but comprehensive in its coverage of the basic requirements, including the most recent changes in arbitration laws, rules, and guidelines. In the book, the author includes insights from numerous international arbitrators and counsel, who tell firsthand about their own experiences of arbitration and their views of the best arbitration practices. Throughout the book, the principles of arbitration are supported and explained by the practice, providing a concrete approach to an important means of resolving disputes.
The World Heritage Convention (WHC) is the most comprehensive and widely ratified among UNESCO treaties on the protection of cultural and natural heritage. The Convention establishes a system of identification, presentation, and registration in an international List of cultural properties and natural sites of outstanding universal value. Throughout the years the WHC has progressively attained almost universal recognition by the international community, and even the International Criminal Tribunal for the Former Yugoslavia has recently considered sites inscribed in the World Heritage List as "values especially protection by the international community." Besides, the WHC has been used as a model for other legal instruments dealing with cultural heritage, like the recently adopted (2003) Convention on the Safeguarding of Intangible Cultural Heritage.
During its more than 30 years of life, the Convention has undergone extensive interpretation and evolution in its scope of application. Operational Guidelines, which are the implementing rules governing the operation of the Convention, have been extensively revised. New institutions such as the World Heritage Centre, have been established. New links, with the World Bank and the United Nations, have developed to take into account the economic and political dimension of world heritage conservation and management. However, many legal issues remain to be clarified. For example, what is the meaning of "outstanding universal value" in the context of cultural and natural heritage? How far can we construe "universal value" in terms of representivity between the concept of "World Heritage" and the sovereignty of the territorial state? Should World Heritage reflect a reasonable balance between cultural properties and natural sites? Is consent of the territorial state required for the inscription of a World Heritage property in the List of World Heritage in Danger? What is the role of the World Heritage Centre in the management of the WHC?
No comprehensive work has been produced so far to deal with these and many other issues that have arisen in the interpretation and application of the WHC. This Commentary is intended to fill this gap by providing article by article analysis, in the light of the practice of the World Heritage Committee, other relevant treaty bodies, as well as of State parties and in the hope that it may be of use to academics, lawyers, diplomats and officials involved in the management and conservation of cultural and natural heritage of international significance.
Tuesday, April 22, 2008
As the United States moves toward the inauguration in January 2009 of a new President, greater attention is paid to what the country might do to restore and reinforce its traditional role as a leader in the promotion of human rights. This essay warns against any assumption that innovation alone will assure greater enforcement of rights; its points of reference are not only the current administration, but also one long past, that of President John F. Kennedy. Rather than jump to embrace new, global concepts like responsibility to protect, therefore, it argues for careful pursuit of local change. It then turns analysis on the locality of the United States, calling for genuine efforts to address rights issues already acute at home, for example: violence, disparities in education, economic disadvantages, the crisis in health and health care. Mid-20th century U.S. human rights discourse - the American Law Institute's Statement of Essential Human Rights and President Franklin D. Roosevelt's Four Freedoms speech - are cited as foundations for this domestic emphasis. The sources likewise invite consideration of means for promoting rights other than judicial enforcement. The essay ends with a hope that should the United States alleviate some of these problems, and so protect the liberty and security of persons within its jurisdiction, it would eschew American exceptionalist boasts and instead let the power of its deeds bespeak its restored role as a promoter of human rights.
Does the United States have the right to defend itself by striking first, or must it wait until an attack is in progress? Is the Bush Doctrine of aggressive preventive action a justified and legal recourse against threats posed by terrorists and rogue states? Tackling one of the most controversial policy issues of the post-September 11 world, Michael Doyle argues that neither the Bush Doctrine nor customary international law is capable of adequately responding to the pressing security threats of our times.
In Striking First, Doyle shows how the Bush Doctrine has consistently disregarded a vital distinction in international law between acts of preemption in the face of imminent threats and those of prevention in the face of the growing offensive capability of an enemy. Taking a close look at the Iraq war, the 1998 attack against al Qaeda in Afghanistan, and the Cuban Missile Crisis, among other conflicts, he contends that international law must rely more completely on United Nations Charter procedures and develop better standards for dealing with serious threats. After explaining how the UN can again play an important role in enforcing international law and strengthening international guidelines for responding to threats, he describes the rare circumstances when unilateral action is indeed necessary. Based on the 2006 Tanner Lectures at Princeton University, Striking First includes responses by distinguished political theorists Richard Tuck and Jeffrey McMahan and international law scholar Harold Koh, yielding a lively debate that will redefine how - and for what reasons - tomorrow's wars are fought.
In today's judgment (summary here; press release here; full opinion not yet available online), the Appeals Chamber unanimously granted the defendants' appeal in part and denied it in part. The Appeals Chamber reversed Hadžihasanović's convictions regarding certain events charged under counts three and four of the indictment. It also reversed one of the findings of guilt concerning Kubura. It upheld the convictions in all other respects and denied the Prosecutor's appeals. Hadžihasanović's sentence was reduced to three years and six months, and Kubura's sentence was reduced to two years.
- Russell Buchan, A Clash of Normativities: International Society and International Community
- Mónica García-Salmones, The Ethos of the Rule of Law in the International Legal Discourse: Portrait of an Outsider
- Olivia den Hollander, Caught Between National and Supranational Values: Limitations to Judicial Cooperation in Criminal Matters as Part of the Area of Freedom, Security and Justice within the European Union
- Michelle Burgis, The Promise of Solid Ground: Arab Territorial Disputes and the Discourse of International Law
- Laurence Boisson de Chazournes, Mainstreaming International Law within the United Nations
- Anthony J. Miller, Privileges and Immunities of United Nations Officials
- Ramses A. Wessel & Jan Wouters, The Phenomenon of Multilevel Regulation: Interactions between Global, EU and National Regulatory Spheres
- Jan Klabbers, Kadi Justice at the Security Council?
- Pablo Mendes de Leon, The Relationship between Eurocontrol and the EC: Living Apart Together
- Rene Uruena, International Law as Administration: The UN's 1267 sanctions Committee and the Making of the War on Terror
- Bartjan Wegter, Emerging from the Crib: The Difficult First Steps of the Newly Born UN Peacebuilding Commission
Monday, April 21, 2008
Shany: Squaring the Circle? Independence and Impartiality of Party-Appointed Adjudicators in International Legal Proceedings
Two recent cases involving challenges to party-appointed arbitrators illustrate once more the inherent problématique of applying notions of judicial independence and impartiality that were originally developed with relation to national and international judges serving on permanent courts to party-appointed adjudicators - that is, to party-appointed arbitrators and ad hoc judges in international courts. Since, party-appointed adjudicators are often expected to be sympathetic to the positions of the party designating them, the very concept of party-appointed adjudicators may be anathematic to traditional notions of judicial impartiality. In this short note, I will argue that the institution of party-appointed adjudicator should be understood as a consensual deviation from the ordinary norms governing the operation of international adjudicatory mechanisms. This deviation represents a trade-off between two competing sets of values and interests: The increased control by the parties over the course of litigation facilitated by their ability to nominate adjudicators entails the sacrificing of some degree of judicial independence and impartiality of the appointed adjudicators in exchange for improved confidence of the parties in the adjudicative process and, as a result, greater inclination on their part to resort to adjudication. It would therefore be a mistake to apply the tests of judicial independence and impartiality developed for permanent national or international judges, or even non-party-appointed arbitrators to party-appointed adjudicators.
Diplomatic Law was first published in 1976. Written with the benefit of the author's deep and practical understanding of the subject as a Legal Counsellor in the Foreign and Commonwealth Office, it has become widely regarded as the leading work in the field. Denza places each provision of the Convention in its historical context; provides commentary on the application of the Convention by the UK, the US, and other States; and thoroughly examines topical problems in the field including the abuse of diplomatic immunity and terrorist violence. This fully updated new edition also highlights important new trends in the application of the Convention regime. It explores the interaction between State and diplomatic immunity (as shown in the Pinochet case), examines methods of establishing and conducting diplomatic relations under conditions of physical danger, and looks at increased evidence of disregard for the rules of secrecy in diplomatic communications. Denza also explores and the greater latitude for diplomats to 'interfere' in the internal affairs of the receiving State in the interest of protecting human rights and evaluates the impact of adoption of the UN Convention on Jurisdictional Immunities of States and their Property.
As conflict and cooperation among states turn to an ever greater extent on economic issues, this fully updated and expanded second edition presents a comprehensive exploration of the legal foundations of the international economy. It not only examines the current status of the law, but also explores the origins, political tensions and development of outcomes that are often difficult to comprehend.
Lowenfeld examines the major elements of economic law in the international arena including the World Trade Organization and its antecedents; dumping, subsidies, and other devices that alter the market; the International Monetary System, including the collapse of the Bretton Woods system; the debt of developing countries; the law of foreign direct investment, including changing perceptions of the rights of host states and multinational enterprises; and economic sanctions. The book also contains chapters on competition law, environmental law, and new chapters on intellectual property and the various forms of arbitration; demonstrating how these subjects fit into the framework of international economic law.
Sunday, April 20, 2008
- Jack I. Garvey, A New Architecture for the Non-Proliferation of Nuclear Weapons
- Maya Brehm, The Arms Trade and States' Duty to Ensure Respect for Humanitarian and Human Rights Law
- Rob McLaughlin, The Legal Regime Applicable to Use of Lethal Force When Operating under a United Nations Security Council Chapter VII Mandate Authorising ‘All Necessary Means’
- Anthony Cullen, The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(f)
- Nout van Woudenberg, The Long and Winding Road Towards an Instrument on Cluster Munitions
- Hilmar Raeschke-Kessler, Corruption in Foreign Investment - Contracts and Dispute Settlement between Investors, States, and Agents
- Andrea Carlevaris, The Conformity of Investments with the Law of the Host State and the Jurisdiction of International Tribunals
- Alberto Alvarez-Jiménez, Minimum Standard of Treatment of Aliens, Fair and Equitable Treatment of Foreign Investors, Customary International Law and the Diallo Case before the International Court of Justice
- Ngangjoh Hodu Yenkong, WTO Treaty System and State Responsibility: Revisiting the Question of Attribution and its Development Perspective in the WTO