Burke-White: The Argentine Financial Crisis: State Liability under BITs and the Legitimacy of the ICSID System

William W. Burke-White (Univ. of Pennsylvania - Law) has posted The Argentine Financial Crisis: State Liability under BITs and the Legitimacy of the ICSID System (Asian Journal of WTO & International Health Law and Policy, Vol. 3, no. 1, pp. 199-234, March 2008). Here's the abstract:

With an extraordinary increase in the number of BITs and the development of the ICSID allowing direct investor-state arbitrations of alleged violations of BITs, international investment law has expanded tremendously over the past two decades and afforded investors with unprecedented protections. This contributed to the initiation of more than forty ICSID cases against Argentina for its measures taken in response to the 2001-2002 financial crises. Among them, four cases decided by early 2008 are of particular significance, in part because of ICSID Tribunals' treatment of Argentina's claims of treaty-based NPM and the necessity principle under customary international law. As analyzed in this article, the resulting jurisprudence is deeply problematic: not only is the reasoning seriously flawed, but the four ICSID Tribunals' rulings also lack consistency even in the face of identical factual circumstances. In turn, this poses a serious challenge to the legitimacy and viability of the BIT regime and the ICSID system more generally, and hence a deep rethinking of various proposed solutions is urgently needed to restore confidence in the system.

ICJ: Avena and Other Mexican Nationals (Mexico v. United States of America) (Request for Interpretation of Judgment)

Yesterday, June 5th, Mexico filed a Request for the interpretation of the Judgment delivered on March 31, 2004 by the International Court of Justice in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America). Mexico invoked the Court's Statute, which provides that "[i]n the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party." Mexico asked the Court "to adjudge and declare that the obligation incumbent upon the United States under paragraph 153(9) of the Avena Judgment constitutes an obligation of result as it is clearly stated in the Judgment by the indication that the United States must provide 'review and reconsideration of the convictions and sentences' but leaving it the 'means of its own choosing'; and that, pursuant to the foregoing obligation of result, (1) the United States must take any and all steps necessary to provide the reparation of review and reconsideration mandated by the Avena Judgment; and (2) the United States must take any and all steps necessary to ensure that no Mexican national entitled to review and reconsideration under the Avena Judgment is executed unless and until that review and reconsideration is completed and it is determined that no prejudice resulted from the violation."

At the same time, Mexico also made an urgent request for the indication of provisional measures, including "that the Government of the United States take all measures necessary to ensure that José Ernesto Medellín, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending the conclusion of the proceedings."

The application and the request for the indication of provisional measures are here. The ICJ press release is here.

I had suggested this possibility in a discussion of what steps Mexico might take in the wake of the Supreme Court's judgment in Medellin v. Texas.

ILR - Light Blogging

I will be on travel for most of the next two weeks, so blogging will be lighter than usual during that time.

ICTY/ICTR: Joint Completion Strategy Briefing of the Security Council

Yesterday, June 4th, the Presidents and Prosecutors of the ICTY and the ICTR briefed the Security Council on their respective completion strategies, pursuant to resolution 1534 (2004). ICTY President Fausto Pocar's statement is here; ICTY Prosecutor Brammertz's statement is here; ICTR President Dennis Byron's statement is is here; ICTR Prosecutor Hassan Jallow's statement is not yet available online. The UN's read-out of the meeting is here; the ICTY's press releases are here and here. The latest completion strategy reports have been issued as UN documents S/2008/322 (ICTR) and S/2008/326 (ICTY). The previous tribunal briefing took place in December.

UPDATE: Jallow's statement is now available here.

ICJ: Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) (Judgment)

Today, the International Court of Justice delivered its judgment in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France). The judgment is here; the press release is here; Djibouti's application is here; the written proceedings (the memorial and counter-memorial) are here; and the oral proceedings are here.

In its Application, Djibouti alleged that "the refusal by the French governmental and judicial authorities to execute an international letter rogatory regarding the transmission to the judicial authorities in Djibouti of the record relating to the investigation in the 'Case against X for the murder of Bernard Borrel'" constituted a breach of France's international obligations under the Treaty of Friendship and Co-operation signed by the two States on June 27, 1977 and the Convention on Mutual Assistance on Criminal Matters between France and Djibouti, dated September 27, 1986. Djibouti also alleged that, by summoning certain Djibouti nationals (including its President, Public Prosecutor, and Head of National Security) in connection with the criminal proceedings in the Borrel case, France breached its international obligations concerning the immunities of Heads of State and State officials. France consented to the Court's jurisdiction, pursuant to Article 38, paragraph 5, of the Rules of Court. Public hearings concluded on January 29.

In today's judgment, the Court found that France, by failing to give Djibouti the reasons for its refusal to execute Djibouti's November 3, 2004, letter rogatory, failed to comply with its international obligation under Article 17 of the 1986 Convention on Mutual Assistance in Criminal Matters. As for reparation, the Court decided that this finding of noncompliance constituted appropriate satisfaction. The Court rejected all of the other claims raised by Djibouti in its final submissions.

Here's the dispositif:

THE COURT,

(1) As regards the jurisdiction of the Court,

(a) Unanimously,

Finds that it has jurisdiction to adjudicate upon the dispute concerning the execution of the letter rogatory addressed by the Republic of Djibouti to the French Republic on 3 November 2004;

(b) By fifteen votes to one,

Finds that it has jurisdiction to adjudicate upon the dispute concerning the summons as witness addressed to the President of the Republic of Djibouti on 17 May 2005, and the summonses as "témoins assistés" (legally assisted witnesses) addressed to two senior Djiboutian officials on 3 and 4 November 2004 and 17 June 2005;

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judges ad hoc Guillaume, Yusuf;

AGAINST: Judge Parra-Aranguren;

(c) By twelve votes to four,

Finds that it has jurisdiction to adjudicate upon the dispute concerning the summons as witness addressed to the President of the Republic of Djibouti on 14 February 2007;

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Shi, Koroma, Buergenthal, Owada, Simma, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Yusuf;

AGAINST: Judges Ranjeva, Parra-Aranguren, Tomka; Judge ad hoc Guillaume;

(d) By thirteen votes to three,

Finds that it has no jurisdiction to adjudicate upon the dispute concerning the arrest warrants issued against two senior Djiboutian officials on 27 September 2006;

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Simma, Tomka, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Guillaume;

AGAINST: Judges Owada, Skotnikov; Judge ad hoc Yusuf;

(2) As regards the final submissions of the Republic of Djibouti on the merits,

(a) Unanimously,

Finds that the French Republic, by not giving the Republic of Djibouti the reasons for its refusal to execute the letter rogatory presented by the latter on 3 November 2004, failed to comply with its international obligation under Article 17 of the Convention on Mutual Assistance in Criminal Matters between the two Parties, signed in Djibouti on 27 September 1986, and that its finding of this violation constitutes appropriate satisfaction;

(b) By fifteen votes to one,

Rejects all other final submissions presented by the Republic of Djibouti.

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Guillaume;

AGAINST: Judge ad hoc Yusuf.

Judges Ranjeva, Koroma, and Parra-Aranguren appended separate opinions to the Judgment of the Court; Judge Owada appended a declaration; Judge Tomka appended a separate opinion; Judges Keith and Skotnikov appended declarations; Judge ad hoc Guillaume appended a declaration; and Judge ad hoc Yusef appended a separate opinion.

Glennon: Force and the Settlement of Political Disputes

Michael J. Glennon (Tufts Univ. - Fletcher School of Law and Diplomacy) has posted Force and the Settlement of Political Disputes (Debate with Alain Pellet, The Hague Colloquium on Topicality of the 1907 Hague Conference, September 7, 2007). Here's the abstract:

The rules of the U.N. Charter that govern the use of force by states have fallen into desuetude.

New Issue: Review of International Organizations

The latest issue of the Review of International Organizations (Vol. 3, no. 2, June 2008) is out. Contents include:

• Wolfgang Mayer & Alex Mourmouras, IMF conditionality: An approach based on the theory of special interest politics
• Martin C. Steinwand & Randall W. Stone, The International Monetary Fund: A review of the recent evidence
• Rafael Biermann, Towards a theory of inter-organizational networking: The Euro-Atlantic security institutions interacting
• Sanford V. Berg & Jacqueline Horrall, Networks of regulatory agencies as regional public goods: Improving infrastructure performance
  

ICC: Assembly of States Parties (Resumed Sixth Session)

Yesterday, the resumed sixth session of the Assembly of States Parties to the Rome Statute of the International Criminal Court commenced at UN Headquarters in New York. It will continue through this Friday, June 6th. The meeting (agenda here; annotated agenda here) will focus on, among other things, the definition of the crime of aggression (discussion paper here) and preparations for the Review Conference of the Rome Statute that will take place in 2010.

Santos and International Law

Yesterday, the Supreme Court of the United States decided United States v. Santos (No. 06-1005). (Opinions here.) The case turned on the interpretation of the word "proceeds" in the federal money-laundering statute, 18 U.S.C. 1956(a)(1). There was no opinion of the court. Justice Scalia, with Justices Souter, Thomas (except for one part of the opinion not relevant to the discussion below), and Ginsburg concurring, concluded that "proceeds" means "profits" and not "receipts." Justice Stevens, writing for himself, agreed with Justice Scalia's conclusion but only in the context of the circumstances of this case, gambling businesses. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justices Kennedy and Breyer concurred. Justice Breyer also filed a dissent. The dissenters would have interpreted "proceeds" as "receipts."

The United States (like many other countries) has assumed a variety of international obligations in the area of international law enforcement. Primary among these is the obligation to criminalize certain acts, as defined in a number of treaties - the United Nations Convention Against Corruption, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the United Nations Convention Against Transnational Organized Crime, the Council of Europe Convention on Cybercrime, and a wide variety of counternarcotics and terrorism conventions, just to name a few. Money laundering is one of those acts that the United States has agreed to criminalize under the Corruption, Transnational Organized Crime, and Antibribery conventions, among others.

One would think that the United States's international obligations would be relevant to the interpretation of the federal money-laundering statute at issue in Santos, and, to his credit, Justice Alito, in his dissent, put those obligations front and center. He wrote:

The leading treaty on international money laundering, the United Nations Convention Against Transnational Organized Crime (Convention), Nov. 15, 2000, 2225 U.N.T.S. 209 (Treaty No. I-39574), which has been adopted by the United States and 146 other countries,[FN2] is instructive. This treaty contains a provision that is very similar to § 1956(a)(1)(B)(i). Article 6.1 of the Convention obligates signatory nations to criminalize “[t]he . . . transfer of property, knowing that such property is the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the predicate offence to evade the legal consequences of his or her action.” Id., at 277 (emphasis added). The Convention defines the term “proceeds” to mean “any property derived from or obtained, directly or indirectly, through the commission of an offence.” Id., at 275 (Art. 2(e)). The money laundering provision of the Convention thus covers gross receipts.[FN3]

[FN2.] See Multilateral Treaties Deposited with the Secretary-General, pt. I, ch. XVIII, No. 12, United Nations Convention against Transnational Crime (Nov. 15, 2007), online at http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty13.asp (all Internet materials as visited May 29, 2008, and available in Clerk of Court's case file).

[FN3.] If 18 U.S.C. § 1956 were limited to profits, it would be narrower than the obligation that the United States undertook in Article 6.1 of the Convention, but the Department of State has taken the position that no new legislation is needed to bring the United States into compliance. See Hearing on Law Enforcement Treaties before the Senate Committee on Foreign Relations, 108th Cong., 2d Sess., 10 (2004) (statement of Samuel M. Witten, Deputy Legal Adviser (“[W]e can comply with the Convention's criminalization obligations without the need for new legislation”)).

Justice Scalia, writing for the plurality, disagreed with the claim that the Transnational Organized Crime Convention was relevant to the interpretation of the statute:

Justice ALITO's dissent (the principal dissent) makes much of the fact that 14 States that use and define the word “proceeds” in their money-laundering statutes, the Model Money Laundering Act, and an international treaty on the subject, all define the term to include gross receipts. See post, at 3-5. We do not think this evidence shows that the drafters of the federal money-laundering statute used “proceeds” as a term of art for “receipts.”

It is unfortunate, to say the least, that a majority of justices on the Supreme Court so cavalierly dismissed U.S. international obligations, particularly in this area. Though Justice Alito fails to say so explicitly (he only hints at this in his footnote 3), the Court's interpretation of the statute, even if limited in the way Justice Stevens suggests, arguably puts the United States in breach, at least, of both the Transnational Organized Crime Convention and the Corruption Convention (which has a money-laundering provision modeled on the TOC Convention). This is ironic since the United States has promoted these criminalization provisions (including money laundering) as a key component of an international law enforcement strategy going back many years now. (It is no mistake that the TOC provision on money laundering is quite similar to the provision in the U.S. code.) The Court's decision is reminiscent of its equally casual and unfortunate dismissal of U.S. international obligations in the context of counternarcotics in Gonzales v. O Centro Espírita Beneficente União do Vegetal (decided February 21, 2006). In both these cases, the Court has significantly undermined U.S standing in international law enforcement and consequently the United States's ability to achieve transnational cooperation and results in this crucial area.

Chesterman: No More Rwandas vs No More Kosovos: Intervention and Prevention

Simon Chesterman (New York Univ. - Law, Singapore Program) has posted No More Rwandas vs No More Kosovos: Intervention and Prevention (in La Protección Internacional de los Derechos Humanos: Un Reto en el Siglo XXI, Ana Covarrubias Velaso & Daniel Ortega Nieto, eds., El Colegio de México, 2007). Here's the abstract:

The type of problem confronting human rights today is not Kosovo but Rwanda. Put differently, the problem is not the legitimacy of humanitarian intervention, but the overwhelming prevalence of inhumanitarian non-intervention. Empowering the United Nations, in this context, requires mobilizing the political will of member states as much as it does the creation of new legal rules. In this context, the rhetorical shift adopted by the International Commission on Intervention and State Sovereignty - from a right of intervention to the responsibility to protect - may mark the strongest advance in this contested area of international relations. Nevertheless, as recent years have demonstrated, enthusiasm about intervention can be - to say the least - a mixed blessing.

New Volume: Ocean Yearbook

The latest volume of the Ocean Yearbook (Vol. 22) is out. Contents include:

• Tundi Spring Agardy, Casting Off the Chains that Bind Us to Ineffective Ocean Management: The Way Forward
• Awni Behnam & Iouri Oliounine, The IOI and the MDGs: A Stakeholder Contribution to Achieving the Millennium Development Goals, A Known Ocean
• Ron O’Dor, Discussions Among Ocean Stakeholders
• Jon Van Dyke, U.S. Accession to the Law of the Sea Convention
• Salvino Busuttil & David Busuttil, Transformation of a Sea: The Next Phase in Mediterranean Cooperation
• Clive Schofield & May Tan-Mullins, Maritime Claims, Conflicts and Cooperation in the Gulf of Thailand
• Jacquelyn Turner, Julia Jabour, & Denzil Miller, Consensus or Not Consensus: That Is the CCAMLR Question
• Joanna Vince, Policy Transfer in Oceans Governance: Learning Lessons from Australia’s Oceans Policy Process
• Kevern Cochrane, Jessica S. Sanders, & Alexis Bensch, MPAs: What’s in a Name?
• Marco Colazingari, Economic Perspectives on Marine-Derived Products
• Christopher C. Joyner & Lindsay Aylesworth, Managing IUU Fishing in the Southern Ocean: Rethinking the Plight of the Patagonian Toothfish
• Annette Muehlig-Hofmann, Ownership of Fijian Inshore Fishing Grounds: Community-Based Management Efforts, Issues of Traditional Authority and Proposed Changes in Legislation
• Jessica Johnson, The Global Ocean Energy Picture
• Falk Huettmann, Marine Conservation and Sustainability of the Sea of Okhotsk in the Russian Far East: An Overview of Cumulative Impacts, Compiled Public Data, and a Proposal for a UNESCO World Heritage Site

Shaffer, Ratton Sanchez, & Rosenberg: The Trials of Winning at the WTO: What Lies Behind Brazil's Success

Gregory Shaffer (Univ. of Minnesota - Law), Michelle Ratton Sanchez (FGV - São Paulo Law School), & Barbara Rosenberg (Barbosa, Müssnich & Aragão Advogados) have posted The Trials of Winning at the WTO: What Lies Behind Brazil's Success (Cornell International Law Journal, forthcoming). Here's the abstract:

This Article aims to advance our understanding of three sets of interrelated questions: who shapes international trade law through litigation and bargaining; how do they do so; and what broader effects do international trade law and judicialization have within a country. The Article builds from four years of empirical investigation of international trade dispute settlement and its impact in Brazil. Its point of entry is an examination of what lies behind Brazil's use of the legal regime of the World Trade Organization (WTO), including in litigation, negotiations and ad hoc bargaining. We assess how the WTO legal regime has affected Brazil's national administration and Brazilian government-business-civil society relations regarding international trade policy and dispute settlement. In turn, we depict the strategies that Brazilian public and private actors have adopted to deploy and shape this very international legal process. We thus aim to show how these national and international processes are reciprocally and dynamically interrelated.

We conclude by drawing out seven findings from our study. We address, in particular, how international trade law and judicialization can unleash a competition for expertise which transforms a government's relation with business and civil society over international trade policy. We contend that the process of catalyzing change within a country is not automatic, but depends on key domestic factors as variables. We find that the resulting dynamic can strengthen the state's ability to engage effectively at the international level. We find that the best interpretation of what lies behind Brazil's success is the rise of pluralist interaction between the private sector, civil society and the government on trade matters. This public-private exchange is spurred by the institutionalization of a more legalized and judicialized system for international trade relations in the broader context of Brazilian democratization and global economic integration. As WTO institutions have developed, individuals and groups in Brazil have responded by investing in expertise to take advantage of the opportunities offered and to defend against the challenges posed. The resulting public-private partnerships have significantly enhanced Brazil's ability to advance its interests in international trade negotiations and dispute settlement, and, in the process, have an impact on the WTO regime.

New Issue: Yale Journal of International Law

The latest issue of the Yale Journal of International Law (Vol. 33, no. 2, Summer 2008) is out. Contents include:

• Bret Boyce, Obscenity and Community Standards
• Monica Hakimi, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide
• T. Alexander Aleinikoff, Transnational Spaces: Norms and Legitimacy

WTO Appellate Body Report: United States - Subsidies on Upland Cotton (Recourse to DSU Article 21.5 by Brazil)

Today, the Appellate Body issued its Report on the case United States - Subsidies on Upland Cotton - Recourse to Article 21.5 of the DSU by Brazil (DS267). The full Report can be found here. An excerpt containing just the AB's findings and conclusions can be found here. A summary of the case can be found here. The Panel Report was issued on December 18, 2007.

ECHR Blog

Antoine Buyse, a lecturer and researcher at the Netherlands Institute of Human Rights (SIM), has created a new blog - ECHR Blog - that focuses on the European Convention on Human Rights. Here's how Antoine describes the blog:

Welcome to this new blog on the European Convention on Human Rights (ECHR), one of the only ones (or maybe the only one?) specifically dedicated to the ECHR. The blog is intended as a portal to information on the European Court of Human Rights and its judgments and decisions. Thus, it includes a RSS feed on the press releases of the Strasbourg Court (upper right side) and a number of links to relevant articles, blogs and other resources. I will try to include recent developments on the ECHR, including new cases and papers on European human rights.

New Volume: Recueil des Cours

Volume 323 (2006) of the Recueil des Cours, Collected Courses of the Hague Academy of International Law is out. Contents include:

• D.P. Fernández Arroyo (l'Université Complutense de Madrid - Law), Compétence exclusive et compétence exorbitante dans les relations privées internationales
• L.J. Silberman (New York Univ. - Law), Co-operative Efforts in Private International Law on Behalf of Children: The Hague Children's Conventions

New Issue: International Tax Journal

The latest issue of the International Tax Journal (Vol. 34, no. 3, May-June 2008) is out. Contents include:

• Hal Hicks & David J. Sotos, The Empire Strikes Back (Again)-Killer Bs, Deadly Ds and Code Sec. 367 As the Death Star Against Repatriation Rebels