Saturday, July 19, 2008
Friday, July 18, 2008
In light of the Supreme Court’s recent decision in Medellin v. Texas, we urge congressional action to ensure that the United States lives up to its binding international legal obligations under the Vienna Convention on Consular Affairs and the United Nations Charter. As current and past Presidents of the American Society of International Law, writing in our personal capacities, we are concerned about the possible U.S. breach of these obligations and the impact such breach could have on our own nationals abroad and on our reputation as a trusted counterparty in international legal relations.
In the Medellin case, the Supreme Court unanimously agreed with the Bush administration that the United States is obliged to comply with the International Court of Justice (ICJ) judgment in the Case Concerning Avena and Other Mexican Nationals holding that the United States must provide "review and reconsideration" of the criminal convictions of 51 Mexican nationals in the United States who were denied their Vienna Convention rights of access to their own national consular officials when apprehended.
President Bush had issued a Memorandum to the Attorney General directing that state courts give effect to the Avena judgment. The Supreme Court concluded, however, that both it and the President were powerless to order such "review and reconsideration" and that, absent voluntary action by state executives or legislatures, compliance with this international obligation requires congressional action.
With the execution of the first of the Mexican nationals scheduled to take place in Texas on August 5, 2008, the United States is poised irreparably to violate the Vienna Convention and a judgment of the ICJ. Such violations of international law would set a dangerous precedent, undermining the reciprocal Vienna Convention rights that American citizens are entitled to enjoy while traveling, living, or working abroad.
Such violations would also damage the reputation of the United States as a nation that respects its international legal obligations and holds others to the same high standard. Our ability to conclude agreements binding on other countries facilitates nearly every aspect of our international relations, including critically important issues relating to cooperation in counter-terrorism efforts, trade, nuclear non-proliferation, environmental protection, and international investment. Our interests in these areas dictate that we adhere to our obligations, including those under the Vienna Convention and U.N. Charter.
Both the President and the Supreme Court have concluded that the United States is obliged to comply with the ICJ Avena judgment. The President has recognized the importance of such compliance to U.S. international relations. Now it falls to Congress to legislate compliance. If you fail to do so, Americans who are detained abroad may well lose the critical protection of ensured access to United States consular officers. We urge that you act, and act quickly.
We thank you for your attention to this important matter.
Petersen: Rational Choice or Deliberation? - Customary International Law between Coordination and Constitutionalization
Rational choice approaches to customary international law have gained in prominence in recent years. Although becoming increasingly sophisticated, they are not able to explain all phenomena of customary international law. This contribution claims that there are two different types of unwritten law in the international order. On the one hand, we have the traditional customary norms, which are identified by observing patterns of state conduct and a related opinio iuris. These norms may very well be described by rational choice approaches, which primarily observe under which conditions we may find stable patterns of behavior. However, there is, on the other hand, a different category of norms that functions in a different manner. These norms concern either human rights or public goods and can be considered as the principles of the international legal order. Their function is not to stabilize already existing behavioral equilibria, but to shape international relations in a positive way. They are not past-oriented, but future-directed. Therefore, it is the thesis of this contribution that a deliberative approach is more suitable to explain the role of these principles in the international community.
The Universal Declaration on Human Rights was pivotal in popularizing the use of "dignity" or "human dignity" in human rights discourse. This article argues that the use of "dignity", beyond a basic minimum core, does not provide a universalistic, principled basis for judicial decision-making in the human rights context, in the sense that there is little common understanding of what dignity requires substantively within or across jurisdictions. The meaning of dignity is therefore context specific, varying significantly from jurisdiction to jurisdiction and (often) over time within particular jurisdictions. Indeed, instead of providing a basis for principled decision-making, dignity seems open to significant judicial manipulation, increasing rather than decreasing judicial discretion. That is one of its significant attractions to both judges and litigators alike. Dignity provides a convenient language for the adoption of substantive interpretations of human rights guarantees that appear to be intentionally, not just coincidentally, highly contingent on local circumstances. Despite that, however, I argue that the concept of "human dignity" plays an important role in the development of human rights adjudication, not in providing an agreed content to human rights but in contributing to particular methods of human rights interpretation and adjudication.
UPDATE: The New York Times also has a story reporting that Pillay has been chosen.
Thursday, July 17, 2008
a. Whether or not the ABC [Abyei Boundaries Commission] experts [in their Report] had, on the basis of the agreement of the Parties as per the CPA [Comprehensive Peace Agreement], exceeded their mandate which is “to define (i.e. delimit) and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905” as stated in the Abyei Protocol, and reiterated in the Abyei Appendix and the ABC Terms of Reference and Rules of Procedure.
b. If the Tribunal determines, pursuant to Sub-article (a) herein, that the ABC experts did not exceed their mandate, it shall make a declaration to that effect and issue an award for the full and immediate implementation of the ABC Report.
c. If the Tribunal determines, pursuant to Sub-article (a) herein, that the ABC experts exceeded their mandate, it shall make a declaration to that effect, and shall proceed to define (i.e. delimit) on map the boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905, based on the submissions of the Parties.
In today's decision (summary here; press release here; full judgment here), the Appeals Chamber rejected all the defendant's grounds of appeal, but upheld two grounds of appeal raised by the prosecution. In particular, the Appeals Chamber found that the Trial Chamber made an error of law in its analysis of whether Strugar possessed the requisite mens rea that his forces would shell the Old Town of Dubrovnik. The Appeals Chamber also concluded that the Trial Chamber also made an error of law when it refused to enter cumulative convictions in respect of counts 4 (devastation not justified by military necessity), 5 (unlawful attacks on civilian objects), and 6 (destruction or wilful damage of cultural property). The Appeals Chamber thus revised the Trial Chamber judgment and entered findings of guilt on counts 4 and 5. Regarding the sentence, the Appeals Chamber concluded that the Trial Chamber's errors had no impact on Strugar's sentence. Given the deterioration in Strugar's health since the Trial Chamber judgment, the Appeals Chamber reduced his sentence to seven and a half years. Judge Shahabuddeen appended a separate opinion. Judges Meron and Kwon appended a joint dissenting opinion. Judges Meron and Kwon dissented from the "majority’s decision to uphold the Trial Chamber’s finding that Strugar did not fulfil his duty to take measures to punish those responsible for the unlawful shelling of the Old Town on 6 December 1991."
WTO Appellate Body Report: U.S. - Measures Relating to Shrimp from Thailand & U.S. - Customs Bond Directive for Merchandise Subject to Duties
Wednesday, July 16, 2008
To create a civil action to provide judicial remedies to carry out certain treaty obligations of the United States under the Vienna Convention on Consular Relations and the Optional Protocol to the Vienna Convention on Consular Relations.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Avena Case Implementation Act of 2008’’.
SEC. 2. JUDICIAL REMEDY.
(a) CIVIL ACTION.—Any person whose rights are infringed by a violation by any nonforeign governmental authority of article 36 of the Vienna Convention on Consular Relations may in a civil action obtain appropriate relief.
(b) NATURE OF RELIEF.—Appropriate relief for the purposes of this section means—
(1) any declaratory or equitable relief necessary to secure the rights; and
(2) in any case where the plaintiff is convicted of a criminal offense where the violation occurs during and in relation to the investigation or prosecution of that offense, any relief required to remedy the harm done by the violation, including the vitiation of the conviction or sentence where appropriate.
(c) APPLICATION.—This Act applies with respect to violations occurring before, on, or after the date of the enactment of this Act.
The Court also stated that "The Government of the United States of America shall inform the Court of the measures taken in implementation of this Order."
The United States of America shall take all measures necessary to ensure that Messrs. José Ernesto Medellín Rojas, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending judgment on the Request for interpretation submitted by the United Mexican States, unless and until these five Mexican nationals receive review and reconsideration consistent with paragraphs 138 to 141 of the Court’s Judgment delivered on 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America).
To indicate provisional measures, the Court had to find, pursuant to Article 60 of the Court's Statute, that there was a "dispute" between the parties regarding the "meaning or scope" of the Avena judgment. The Court stated that there "appears to be a difference of opinion" between the parties concerning the meaning of paragraph 153(9) of the judgment; particularly, the Court noted, the parties "apparently hold different views as to the meaning and scope of that obligation of result, namely, whether that understanding is shared by all United States federal and state authorities and whether that obligation falls upon all those authorities."
Judge Buergenthal appended a dissenting opinion to the Order; Judges Owada, Tomka and Keith appended a joint dissenting opinion; and Judge Skotnikov appended a dissenting opinion.
UPDATE: The order and the dissenting opinions are now available here. The Court has also posted a summary of the order here.
By naming Sudan's president as a suspect for genocide over Darfur, the prosecutor of the International Criminal Court has taken his most dramatic step since the Court came into being six years ago. The move has caused alarm among diplomats and aid workers, who worry that it may complicate efforts to aid civilians in Darfur and end the conflict there.
But it would be a mistake to look for a short-term political fix that could do serious harm to the wider cause of international justice. Countries that supported the creation of the International Criminal Court, and above all the members of the UN Security Council who gave the ICC jurisdiction in Darfur, should now let the judicial process take its course.
In 2005, Britain and France led efforts to pass a resolution at the United Nations Security Council that gave the Court jurisdiction over war crimes in Darfur. Because Sudan is not a party to the Court, it would not otherwise have been able to look into atrocities committed there. The British ambassador to the UN said at the time that holding war criminals accountable would contribute to both peace and justice.
Now there is growing concern that the interests of peace and justice may conflict. The cooperation of Sudan's government is essential for the deployment of peacekeepers and the delivery of humanitarian aid. Since regime change in Sudan is not in prospect, no peace agreement in Darfur can be imagined without President Bashir's consent. If the International Criminal Court's judges agree to the prosecutor's request for an arrest warrant (a decision they will not make before September), it is hard to see how European officials can continue to deal with the Sudanese leader.
But the consequences of the charges against Bashir are unpredictable. There have been earlier cases where dire warnings about the consequences of charging heads of state with war crimes have proved unfounded. The Yugoslav war crimes tribunal announced charges against Slobodan Milosevic during the war over Kosovo, and he accepted NATO's ceasefire terms only a few days later.
Moreover, in the case of Sudan, there may be ways of managing the impact. If the Court issues an arrest warrant, it would only be binding on states that are members-so countries like the United States and China, which are not party to the Court, could continue to negotiate with the Sudanese regime. In the meantime, it is essential that all countries involved in the aid effort in Sudan emphasize that the Court is an independent body that follows its own procedures. Diplomatic statements that seem to rebuke the prosecutor for his action would undermine this message and could give legitimacy to any Sudanese retaliation.
The Security Council has the power under Article 16 of the Rome Statute to suspend any case before the Court for a year at a time, and there have been suggestions that it should do so now. But it would be devastating for the credibility of the ICC if the Council were to suspend the case at this moment, when the situation in Darfur has not greatly changed since the same body voted to allow the Court to investigate. Instead, the Security Council should keep the prospect of a deferral in reserve as an incentive for President Bashir to engage genuinely in peace negotiations with rebel groups.
The prosecutor's inclusion of genocide among the charges is ambitious, and might be difficult to sustain if the case eventually comes to trial. He said in a statement that conditions in Darfuri refugee camps were calculated to bring about the destruction of the three tribes that have been the primary victims: "In the camps, al-Bashir's forces kill the men and rape the women. He wants to end the history of the Fur, Masalit and Zaghawa people."
But there should be little surprise that Bashir has been named as a suspect for war crimes and crimes against humanity, given the persistent evidence that has emerged of the involvement of Sudan's military and government officials in attacks against civilians. It seems fitting that the prosecutor should attempt to follow responsibility for these crimes up the Sudanese chain of command, since it is the highest authorities who bear the greatest responsibility for atrocities committed at their instigation.
The movement for international justice remains a recent development in international politics, and it is hard to predict how the objectives of peace and accountability will interact in any particular case. If the indictment of President Bashir turns out to be an obstacle to a settlement in Darfur, it may make the ICC's supporters think more deeply about when they call for it to be given jurisdiction over future conflicts. But having already taken the gamble of giving the Court a role in Darfur, the international community must now resist any move that would undermine the ICC's legitimacy and set back the cause of international justice as a whole.
Jankowska-Gilberg: Extraterritorialität der Menschenrechte: Das Konzept der Jurisdiktion im Sinne von Art. 1 EMRK
Ende 2001 erklärte der Europäische Gerichtshof für Menschenrechte (EGMR) eine Beschwerde der Opfer von NATO-Luftangriffen auf Belgrad für unzulässig. Die Opfer hätten sich, so der EGMR, nicht unter der Jurisdiktion der Konventionsstaaten befunden. Die sog. Bankovic-Entscheidung ist in der Literatur zum Teil scharf kritisiert worden. Von dieser Entscheidung ausgehend ermittelt die Autorin die in der Literatur herrschenden Argumentationslinien und analysiert die übrige Rechtsprechung des EGMR zur extraterritorialen Anwendbarkeit der Konvention. Zu diesem Zweck wird auch das Verhältnis der EMRK zum humanitären Völkerrecht und zu den Regeln der Staatenverantwortlichkeit untersucht. Auf dieser Grundlage wird ein dogmatisch stimmiges Konzept der Jurisdiktion im Sinne von Art. 1 EMRK entwickelt, das die Bankovic-Entscheidung mit der übrigen Rechtsprechung des EGMR in Einklang bringt.
Tuesday, July 15, 2008
- Magdalena Lickova, European Exceptionalism in International Law
- Andrea Bianchi, Human Rights and the Magic of Jus Cogens
- Kjetil Mujezinovic Larsen, Attribution of Conduct in Peace Operations: The 'Ultimate Authority and Control' Test
- Marcello Di Filippo, Terrorist Crimes and International Co-operation: Critical Remarks on the Definition and Inclusion of Terrorism in the Category of International Crimes
- Caroline Henckels, Overcoming Jurisdictional Isolationism at the WTO-FTA Nexus: A Potential Approach for the WTO
The prosecutor of the International Criminal Court has made the tough decision to seek an arrest warrant for a leader of a country at war — Sudan’s president, Omar Hassan al-Bashir. He is to be charged with genocide, crimes against humanity and war crimes during the last five years of war in Darfur.
One has to go back to the cases against Slobodan Milosevic of Yugoslavia in 1999 and Charles Taylor of Liberia in 2003 to find the last time that international prosecutors charged a sitting head of state. Then, as now, they were criticized for failing to take “politics” into account.
These criticisms are misdirected. The 1998 Rome treaty establishing the International Criminal Court removed head-of-state immunity for atrocity crimes. Since 2005, when the United Nations Security Council referred the Darfur situation to the court, the prosecutor, Luis Moreno-Ocampo, has simply been doing his job — which is to present charges against those who bear the greatest responsibility for the crimes.
Critics predict that an arrest warrant will harm efforts to deliver aid and to deploy the United Nations peacekeeping force in Darfur. But both of these efforts are already hobbled. Mr. Bashir’s government has a long history of obstructing aid — notably during the famine in 1998, before the International Criminal Court even existed. And an obstructionist Sudanese government and the countries that are supposed to contribute troops to the peacekeeping force have long dragged their feet. It has taken five years to deploy just 9,000 soldiers. If Khartoum retaliates against the arrest warrant by attacking refugees, aid workers or peacekeepers, the responsibility will lie solely with the leaders who issue the orders.
Some critics also worry that the indictments may harm the Darfur peace process by removing a key negotiating point — an offer of amnesty to President Bashir along with the possibility of quiet retirement in a third country. But sometimes ambiguity over accountability can help peace negotiations along, as it did in South Africa in 1991, when amnesty was also a bargaining chip. Arrest warrants from The Hague also assisted the Bosnian peace process by removing hard-liners from the negotiating table.
It is too early to tell what effects the indictment will have on peace efforts. So far, there has been no Darfur peace process to speak of. Part-time United Nations and African Union mediators recently resigned in frustration, calling for a new approach.
In the meantime, the indictments may delegitimize the government in the eyes of the Sudanese people, especially the elites in Khartoum. In 1999, after the International Criminal Tribunal for the Former Yugoslovia issued its arrest warrant for President Milosevic, an opposition group called Otpor turned it into a political weapon with the slogan, “He is finished.” Mr. Milosevic lost the elections in 2000. Although other factors contributed to his fall, including lost wars and corruption, the indictments played their part by demonstrating his isolation.
In Sudan’s 2009 elections, some citizens may rally behind their president. Others may not.
In the story of the emperor’s new clothes, a little boy is the only one who has the innocence to point out that the emperor is naked. The arrest warrants for President Bashir reveal to the world what type of regime holds power in Khartoum. They should also push the Security Council to apply real pressure on the Sudanese government. The council and its member states should make President Bashir’s government an international pariah, imposing sanctions against its leaders and, most important, Sudan’s oil exports, which have so effectively insulated the regime.
The prosecutor’s message might make some people uncomfortable, but that does not mean we should shoot the messenger. This crisis should galvanize the Security Council to take serious action.
Van Schaack: Engendering Genocide: The Akayesu Case Before the International Criminal Tribunal for Rwanda
This article - which will appear as a chapter in a "law stories" volume on Human Rights Advocacy - discusses the role that advocacy by women's rights and human rights organizations and activists played in gaining legal recognition of the concept of genocidal rape within international criminal law. The chapter discusses the procedural history and jurisprudential contributions of the case against Jean Paul Akayesu before the International Criminal Tribunal for Rwanda. The chapter then traces Akayesu's legacy with respect to gender justice with respect to subsequent cases before the ad hoc international tribunals and within the Statute of the international criminal court. The Chapter concludes that while feminist advocacy produced important concrete results in the Akayesu case, when placed in this larger context, the Akayesu case better exemplifies the difficulty faced by activists in influencing the prosecutorial and adjudicative process, where prosecutorial discretion is paramount and tribunals may only rule on the evidence that properly appears before them.
- Peter Muchlinski, Policy and Objectives
- Engela Schlemmer, Investment, Investor, Nationality and Shareholders
- Ole Spiermann, Applicable Law
- S. Amarasinha & J. Kokott, Do we need a Multilateral Investment Agreement?
- Moshe Hirsch, Relationship Between Investment Treaties and Other Treaties
- Friedl Weiss, Trade and Investment
- Ignacio Gomez-Palacio & Peter Muchlinski, Admission of Investment and Right of Establishment
- Todd Weiler, Standards of Treatment
- Thomas Wälde & Abba Kolo, Coverage of Taxation under Modern Investment Treaties
- Pia Acconci, Most-Favoured-Nation Treatment
- August Reinisch, Expropriation
- Andrea Bjorklund, Emergency Exceptions and Safeguards
- Andreas R. Ziegler, Investment Insurance
- Kaj Hobér, State Responsibility
- Hilmar Raeschke-Kessler, Corruption
- A. Kotera, Transparency
- P. Muchlinski, Corporate Social Responsibility
- Loretta Malintoppi & August Reinisch, Methods of Dispute Resolution
- Joachim Frances Delaney & Daniel Magraw, Transparency and Public Interest
- Loretta Malintoppi, Independence, Impartiality and Duty of Disclosure of Arbitrators
- Christoph Schreuer, Consent to Arbitration
- David Williams, Jurisdiction and Admissibility
- J.J. barones van Haersolte-van Hof & Anne K. Hoffmann, Relationship between International Arbitral Tribunals and Domestic Courts
- Katia Yannaca-Small, Parallel International Proceedings
- Thomas Wäelde & Borzu Sabahi, Remedies and Damages
- Vladimir Balas, Review of Awards
- A. Qureshi, A Possible Appellate System
- Alan Alexandroff & I. Laird, Compliance and Enforcement
- M. Weiniger & C. Schreuer, Precedent
- G. Cordero Moss, Tribunal's Initiative or Party Autonomy?
- Peter Muchlinski, Christoph Schreuer, & Federico Ortino, Conclusions and Trends
- Miguel A. Acosta Sánchez, La primera misión de mantenimineto de la paz de la UE: observación de la Unión Europea (MOUE) en los Balcanes
- Juan José Álvarez Rubio, El Tratado de Lisboa y la plena comunitarización del espacio de libertad, seguridad y justicia
- Pedro Lozano Bartolozzi, El nuevo escenario de la sociedad de la información en un mundo global
- Nicolás Carrillo Santarelli, Non-State actor's Human Rights obligations and responsability under international law
- Daniel García San José, Unilateralismo y multilateralismo como conceptos de geometría en la sociedad internacional poscontemporánea
- Maite J. Iturre, El debate sobre la seguridad y los límites de la seguridad energética
- Martti Koskenniemi, Formalismo, fragmentación y libertad. Temas kantianos en el derecho internacional actual
- Mariana Herz, Responsabilidad del Estado por incumplimiento de las convenciones sobre restitución internacional de niños, niñas y adolescentes. A propósito de la jurisprudencia de la Corte Europea de Derechos Humanos
- Elena Rodríguez Pineau, Agentes "comunitarios" y autonomía de la voluntad: ¿Es posible derogar la CJI de los Tribunales de los Estados miembros?
- Juan Santos Vara, El control judicial de la ejecución de las sanciones antiterroristas del Consejo de Seguridad en la Unión Europea
- Marcelo G. Kohen, Pour le Kosovo: une solution "made in Hong Kong"
Monday, July 14, 2008
- Max Bonnell, When is an Arbitration Agreement "Inoperative"?
- Mohamed S. Abdel Wahab, International Commercial Arbitration and Constitutional Court Review: Contemporary Trends and National Policies
- Shivani Singhal, Independence and Impartiality of Arbitrators
Call for Papers: Unity or Fragmentation of International Law: The Role of International and National Tribunals
In recent decades there has been a considerable growth in the number of international tribunals, such as the International Tribunal for the Law of the Sea and the Dispute Settlement Body of the World Trade Organization. At the regional level we have the European Court of Human Rights, the Inter-American Court of Human Rights and the African Court of Human and Peoples’ Rights. Furthermore, supervisory bodies have been established to control implementation of treaty obligations. These may take the form of ‘quasi-judicial’ bodies such as in the field of human rights or organs under political control as in international environmental law (‘non-compliance procedures’). In addition to international tribunals, there has been a significant increase in the application of international law in domestic courts.
This Conference will focus on the contribution that these tribunals and courts have made to the unity or fragmentation of international law. In particular, it will focus on aspects of this theme:
- Methods of interpretation by international tribunals
- Jurisdictional overlaps between international tribunals and compliance mechanisms
- Dialogue or conflict between international tribunals and national courts
- Interpretation and application of international law in national courts.
[The call for papers] invites empirically based research papers to be presented and discussed as a basis for drawing general comparisons and conclusions on the role of international tribunals and domestic courts in the process of fragmentation and de-fragmentation (unity) of international law.
abstracts: 1 October 2008
accepted papers: 1 February 2009
There is no fixed word limit for abstracts. However, we prefer texts delimited to that minimum which constitutes adequate grounds for evaluation.
Papers and abstracts may be submitted by e-mail to: email@example.com
If you are unable to submit electronically, submissions may be sent by mail to:
Ole Kristian Fauchald
University of Oslo
Department of Public and International Law
P.O. Box 6706
St Olavs Plass N-0130
Oslo Norway), University of Oslo.
- Emmanuelle Jouannet, A quoi sert le droit international?: le droit international providence du XXIème siècle
- Sarah Heathcote, Est-ce que l'état de nécessité est un principe de droit international coutumier?
- Helmut Tuerk, The Landlocked States and the Law of the Sea
- Stanislas Adam, Het Europees Hof van Justitie en andere internationale rechtsprekende organen: enkele opmerkingen naar aanleiding van het Mox-fabriek arrest
- Pascal Lamy, El lugar y la función (del Derecho) de la Organización Mundial del Comercio en el orden jurídico internacional
- Jaume Ferrer Lloret, La inmunidad de jurisdicción del Estado ante violaciones graves de los derechos humanos
- Jesús González Giménez, Las líneas de base en el mar Mediterráneo: ¿discrecionalidad o arbitrariedad en la acción estatal?
- Gloria Esteban de la Rosa, El nuevo Derecho Internacional Privado de la Inmigración
- Joaquim J. Forner i Delaygua, Sucesión testamentaria de un belga sujeta por reenvío a la Ley catalana
- Marta Requejo Isidro, Las instituciones comunitarias ante las reclamaciones civiles por violaciones graves de derechos humanos frente al Estado
- Juan Santos Vara, El desafío de las "entregas extraordinarias" a la protección internacional de los derechos humanos: la responsabilidad de los Estados Europeos
Sunday, July 13, 2008
- Peter Hilpold, Unionsbürgerschaft und Bildungsrechte oder: Der EuGH-Richter
- Johann Egger, Nationale Interessen und Nichtdiskriminierung im Arbeits- und Sozialrecht
- Reinhold Beiser & Thomas Kühbacher, Ertragsteuern im Spannungsfeld der Grundfreiheiten des EG-Vertrages
- Thomas Kühbacher, Die Gewährung steuerlicher und sozialer Vergünstigungen
- Peter Bußjäger, Der EuGH als rechtsschöpfende und rechtsgestaltende Instanz unter dem Blickwinkel des österreichischen Verwaltungsrechts
- Manfred Büchele, Diskriminierung, Beschränkung und Keck-Mithouard – die Warenverkehrsfreiheit
- Karl Weber unter Mitarbeit von Christopher Engel und Simone Wasserer, Der Transitverkehr in der Judikatur des EuGH: Spannungsfeld zwischen Warenverkehrsfreiheit und Umweltschutz
- Günter H. Roth unter Mitarbeit von Mathias Demetz und Guido Donath, Gesellschaftsrecht: Briefkastengründungen und Golden Shares
- Bernhard A. Koch, Nationales Deliktsrecht vor dem EuGH – Irrungen und Wirrungen
- Philipp Dobler, Legitimation und Grenzen der Rechtsfortbildung durch den EuGH
- Günter H. Roth, Der EuGH und die Souveränität der Mitgliedstaaten: Zusammenfassung und Schlussfolgerungen
The Alien Tort Statute (ATS) indisputably brings international law into U.S. courts. The question is: How much international law? The U.S. Supreme Court was recently precluded from addressing this question in cases involving alleged corporate complicity in the crime of apartheid because four judges recused themselves, leaving the court without a quorum. The answer to this question can determine the outcome of cases brought against corporations for alleged complicity in international law violations by foreign governments. It will also shape the extent to which U.S. courts in ATS cases continue to interpret and apply international law, thereby contributing to the development and enforcement of international law standards.
This Article provides an analytic roadmap for courts confronting accomplice liability claims in ATS cases. Part I concludes that U.S. courts should look to international law on accomplice liability, rather than federal common law. Part II examines international law doctrine on accomplice liability and concludes that the Second Circuit in the South African apartheid cases misstated the applicable standard, which prohibits knowingly providing assistance that has a substantial effect on the commission of the wrongful act. Part III considers the implications of this doctrinal analysis for broader concerns about the indeterminacy of international law and notions of international comity. By applying well-established international law to defendants' conduct, U.S. courts can provide domestic remedies for international wrongs while avoiding criticisms of illegitimately applying U.S. substantive law outside U.S. territory.
Despite their popularity, regional organizations are decidedly controversial. As integrative agreements only between neighboring countries, regional organizations do not always create new trading opportunities. Instead, by lowering tariffs on goods flowing between member states, while at the same time retaining high tariffs against goods from third-party countries, they potentially substitute intra-bloc imports for what would otherwise be imports from outside the group. Because of such trade diversion, many commentators have characterized regional free trade as a "club good" - that is, as a special private benefit deriving value, in part, from the fact that nonparticipants are excluded.
This Article undertakes the first systematic examination of regional organizations as clubs in the legal literature and argues that although regional organizations exhibit some club-like dynamics they are at best incomplete forms of such cooperation. Two shortcomings are specifically identified. First, the Article shows that the legal architecture of trade agreements limits the degree to which many regional organizations are truly exclusive. As a result, regional organizations provide fewer benefits to members than classic economic clubs. Second, regional organizations are heterogeneous in ways other than those envisioned in the classic economic club literature. Specifically, members differ not in terms of the degree to which they prefer the club good - as is the theoretical conception of heterogeneity in the club goods literature - but instead in terms of their qualitative characteristics and competitiveness. Each member will thus not only incur different costs in joining a regional organization, but will also have a different point at which the preferential trading market will be congested with too many competitors. This heterogeneity further suggests that, all other political factors being equal, expansion of a regional organization's membership will be based not so much on the economic competitiveness of new members, but instead on the inefficiency of a prospective member state's domestic industries relative to those of each of the regional organization's members.
There are frequent claims that the regulation of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the desired stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary pre-requisite for international law to be viewed as law.
This study examines this problem for the first time since these questions were introduced and identified as the basic premises of the international legal analysis, in the works of JL Brierly and Sir Hersch Lauterpacht.
Addressing different aspects of the effectiveness of legal regulation, this monograph examines the structural limits on, and threshold of, legal regulation, and the relationship between established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to examine the legal framework of interpretation that serves to maintain and preserve the object and aims of existing legal regulation.
The final stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals.