Saturday, August 9, 2008
Friday, August 8, 2008
The State of Texas had an opportunity this week to display a victor's grace. Instead, it rebuffed pleas by the U.S. secretary of state and the U.S. attorney general for help in resolving an international dispute and in the process gave the back of its hand to the country and its obligations.
The issue involved two foreign nationals on Texas's death row. The leading case involved José Ernesto Medellín, a Mexican national whom the state executed Tuesday for his part in the 1993 gang rape and murder of two Texas girls. There is little doubt that Mr. Medellín was guilty: He confessed to the crimes just hours after his arrest, and his conviction was upheld by state and federal appeals courts. But Mr. Medellín, who spoke fluent English and had lived in the United States since he was a child, later challenged his conviction because Texas law enforcement officials failed to inform him of his right under the Vienna Convention for Consular Affairs to speak with the Mexican consulate. The state, which admitted the error, became the subject of a dispute with Mexico before the International Court of Justice, the judicial arm of the United Nations.
The ICJ found that Mr. Medellín and 50 other Mexican nationals on death row in the United States were entitled to "review and reconsideration" of their cases because of Vienna Convention violations. President Bush ordered Texas to comply, but the state balked, citing state laws that prevented reopening the matter. In March, the U.S. Supreme Court sided with Texas, concluding that the ICJ ruling was not binding domestically and that the president overstepped his bounds in trying to force the state's compliance. The court, however, acknowledged that the United States had breached its duties under the Vienna Convention. Justice John Paul Stevens, who was part of the majority, urged the state to voluntarily comply or to work toward a reasonable resolution so as to mend the breach. Instead, Texas set this week's execution date for Mr. Medellín, which all but foreclosed the possibility of a legislative or diplomatic solution. In refusing to give the federal government more time, Texas has now increased the possibility that foreign countries will not recognize in a robust way the rights of U.S. citizens detained abroad. Yesterday, Texas executed a second foreign national, Heliberto Chi, a Honduran whose lawyers made arguments about his lack of consular access.
Texas should be commended for agreeing to support federal court review for some of the other Mexican nationals on death row. The state must be held to that promise. And all states and municipalities must be conscientious in the future to ensure that foreign nationals are informed of their right to consular access.
Under traditional "two-party" norms of international law, an aggression by state X against state Y only gives state Y the right to retaliate. If, however, a matter of international law is governed by "erga omnes" norms, all states are entitled to engage in countermeasures. This raises the question why some international legal norms have the status of erga omnes while others do not. Posner  argues that erga omnes rules are likely to emerge in areas where, on average, externalities due to the original aggression are high, motives for taking norm violation as a pretext for engaging in predatory behaviour are weak, and incentives for free-riding are strong. Moreover, he predicts that erga omnes rules will reduce free-riding and hence increase the probability of enforcement. We shall argue herein that erga omnes rules can actually have the opposite effect of increasing free-riding and reducing the probability of enforcement. This might explain why genocide in Dafur is ongoing despite (or even because) being governed by an erga omnes norm.
Erga omnes norms are those that give third-party states, rather than just the victim, legal claims against states that violate them. This paper argues that ordinary two-party norms arise when states recognize that a norm violation injures only one state and that other states that seek to retaliate on that state's behalf are likely using the violation as a pretext for predatory behavior. Erga omnes norms arise when states recognize that a norm violation injures multiple states and that states have an incentive to free ride rather than retaliate against the violator. Erga omnes norms reduce the incentive to free ride but at the same time reintroduce the risk that some states will use a norm violation as a pretext for engaging in predatory behavior.
Treaties are the primary source of international law. But little is known about which countries enter into treaties, which forms the treaties take, and which subjects they address. We present an exploratory analysis of a unique dataset of roughly 50,000 treaties ratified since 1946. We hypothesize that states enter treaties in order to obtain public goods but that the transaction costs of negotiating and enforcing treaties also limit the value of treaties. Simple predictions are that larger and richer states should benefit more from cooperation: therefore, they should be parties to more treaties. Older, less corrupt, and (again) larger states should face lower transaction costs and should belong to more treaties. Consistent with this prediction, these states enter into more bilateral treaties and "closed" multilateral treaties, but universal multilateral treaties where the benefits of cooperation are more attenuated and the costs of negotiation are low for small states.
Thursday, August 7, 2008
- Beth Stephens, Judicial Deference and the Unreasonable Views of the Bush Administration
- Nicola M.C.P. Jägers & Marie-José van der Heijden, Corporate Human Rights Violations: The Feasibility of Civil Recoursein the Netherlands
- Anthony J. Sebok, Taking Tort Law Seriously in the Alien Tort Statute
- Jonathan Clough, Punishing the Parent: Corporate Criminal Complicity in Human Rights Abuses
- Ralph G. Steinhardt, Soft Law, Hard Markets: Competitive Self-Interest and the Emergence of Human Rights Responsibilities for Multinational Corporations
- Ronald C. Slye, Corporations, Veils, and International Criminal Liability
Aguilar Alvarez & Reisman: The Reasons Requirement in International Investment Arbitration: Critical Case Studies
This collection of essays emerged from a seminar on international investment law taught jointly by the editors at the Yale Law School. The participants brought a rich experience and, as important for a subject like this, a rich national diversity. A considerable part of the seminar involved close reading of recent international investment arbitral awards. These decisions have emerged as the most important engines of legal development in this field. Interestingly, in almost all instances, it was felt that the right decision had been reached. But without the building blocks that reasons reflect, one could not reconstruct or “reverse engineer” the reasoning of the tribunal. From this experience, it was concluded that it would be a useful exercise to examine the adequacy of reasons in some of the most important recent international investment law awards in order to see if there were significant trends with policy implications. The studies in this collection represent the best of the seminar.
- Symposium: Human Rights in the United States
- Diane Marie Amann, The Course of True Human Rights Progress Never Did Run Smooth
- Caroline Bettinger-Lopez, Jessica Gonzales v. United States: An Emerging Model for Domestic Violence & Human Rights Advocacy in the United States
- Stacey L. Sobel, The Mythology of a Human Rights Leader: How the United States has Failed Sexual Minorities at Home and Abroad
- Richard L. Herz, The Liberalizing Effects of Tort: How Corporate Complicity Liability Under the Alien Tort Statute Advances Constructive Engagement
- Grant Dawson & Rachel Boynton, Reconciling Complicity in Genocide and Aiding and Abetting Genocide in the Jurisprudence of the United Nations Ad Hoc Tribunals
- Inés Mónica Weinberg de Roca & Christopher M. Rassi, Sentencing and Incarceration in the Ad Hoc Tribunals
- Sital Kalantry, The Intent-to-Benefit: Individually Enforceable Rights Under International Treaties
- Qiang Fang & Roger Des Forges, Were Chinese Rulers Above the Law?
Wednesday, August 6, 2008
Conference: The Energy Charter Treaty: Energy Security, Investment Protection and Future Developments (Update)
- Constantine Antonopoulos, Force by Armed Groups as Armed Attack and the Broadening of Self-Defence
- James A. Green, Self-Defence: A State of Mind for States?
- Alexander Orakhelashvili, Between Impunity and Accountability for Serious International Crimes: Legal and Policy Approaches
- Ndiva Kofele Kale, Participatory Rights in Africa: A Brief Overview of an Emerging Regional Custom
- Gregor Noll, The Miracle of Generative Violence? René Girard and the Use of Force in International Law
- Shirley V. Scott, Intergovernmental Organizations as Disseminators, Legitimators, and Disguisers of Hegemonic Policy Preferences: The United States, the International Whaling Commission, and the Introduction of a Moratorium on Commercial Whaling
- Jörn Griebel & Milan Plücken, New Developments Regarding the Rules of Attribution? The International Court of Justice's Decision in Bosnia v. Serbia
- Paolo Palchetti, The Power of the International Court of Justice to Indicate Provisional Measures to Prevent the Aggravation of a Dispute
- Tjaco T. van den Hout, Resolution of International Disputes: The Role of the Permanent Court of Arbitration – Reflections on the Centenary of the 1907 Convention for the Pacific Settlement of International Disputes
- Kevin Jon Heller, What Happens to the Acquitted?
- Elies van Sliedregt, Witness Proofing in International Criminal Law: Introduction to a Debate
- Ruben Karemaker, B. Don Taylor, &, Thomas Wayde Pittman, Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence
- Asrid Reisinger Coracini, ‘Amended Most Serious Crimes’: A New Category of Core Crimes within the Jurisdiction but out of the Reach of the International Criminal Court?
- Cedric Ryngaert, The Doctrine of Abuse of Process: A Comment on the Cambodia Tribunal's Decisions in the Case against Duch (2007)
Tuesday, August 5, 2008
UPDATE (11:27PM): Following the Supreme Court's decision, Medellín was executed. He was pronounced dead 30 minutes ago. (The Court's consideration of the case delayed the execution several hours past its scheduled time of 6PM Central.)
- Ken Rodman, Darfur and the Limits of Legal Deterrence
- Patricia A. Weitsman, The Politics of Identity and Sexual Violence: A Review of Bosnia and Rwanda
- Michael Schecter & Michael Bochenek, Working to Eliminate Human Rights Absuses of Children: A Cross-National Comparative Study
- Glen Mitoma, Civil Society and Human Rights: The Commission to Study the Organization of Peace and the Origins of the UN Human Rights Regime
- Jill Marshall, Conditions for Freedom? European Human Rights Law and the Islamic Headscarf Debate
- Murat Sevinç, Hunger Strikes in Turkey
- Steven Greer, What's Wrong with the European Convention on Human Rights?
- Todd Howland, How El Rescate, a Small Non-governmental Organization Contributed to the Transformation of the Human Rights Situation in El Salvador
- Jean Bethke Elshtain, Response to Tom Farer's "Un-just War Against Terrorism and the Struggle to Appropriate Human Rights"
- Tom Farer, Still Searching for Engagement: A Comment on Professor Jean Bethke Elshtain's Response to "Un-just War Against Terrorism and the Struggle to Appropriate Human Rights"
- Editorial Comment
- Heikelina Verrijn Stuart, The ICC in Trouble
- Kevin Jon Heller, Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis
- Melanie Klinkner, Proving Genocide?: Forensic Expertise and the ICTY
- Symposium: Lubanga Before the ICC
- Salvatore Zappalà, Foreword
- Thomas Weigend, Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges
- Michela Miraglia, Admissibility of Evidence, Standard of Proof, and Nature of the Decision in the ICC Confirmation of Charges in Lubanga
- Symposium: Some Problems in the Fight Against Terrorism
- Armando Spataro, Why Do People Become Terrorists?: A Prosecutor's Experiences
- Lucia Aleni, Distinguishing Terrorism from Wars of National Liberation in the Light of International Law: A View from Italian Courts
- Michael Bothe, Security Council's Targeted Sanctions against Presumed Terrorists: The Need to Comply with Human Rights Standards
- Notes and Comments
- Harmen van der Wilt, Genocide v. War Crimes in the Van Anraat Appeal
- Helen Brady & Barbara Goy, Current Developments at the Ad Hoc International Criminal Tribunals
Fox: Constitutional Violations and the Validity of Treaties: Will Iraq Give Lawful Consent to a Status of Forces Agreement?
The United States and Iraq are about to conclude a Status of Forces Agreement (SOFA) designed to replace UN Security Council resolutions as the legal basis for a continued U.S. troop presence in Iraq. But it appears the Iraqi Prime Minister and the Iraqi Parliament are divided on the desirability of a SOFA, the former favoring the agreement and the latter opposing it. Because the United States has pushed very hard to complete an agreement, one possible scenario is that the Iraqi Parliament will refuse to ratify the SOFA. What would happen if the Iraqi Prime Minister nonetheless signed the agreement, representing that his signature was sufficient to bind the state of Iraq?
Few dispute that such an act would violate the 2005 Iraqi constitution, which requires parliamentary approval of all treaties. This article inquires into the international legal effect of such a national law violation. It concludes that under Article 46 of the Vienna Convention on the Law of Treaties, the SOFA would be voidable at the discretion of future Iraqi governments. Three arguments support this conclusion.
First, the 2005 Iraqi constitution clearly requires Parliamentary approval of treaties. The United States has been acutely aware of this requirement throughout the negotiations, and for it to claim that a SOFA lacking parliamentary approval was nonetheless valid would be an act of blatant bad faith. The U.S. made the new Iraqi constitution possible by deposing the Saddam regime, set the constitutional drafting process in motion during its control of the country from May 2003 to June 2004 and was intimately involved in the drafting process itself. The international law of treaties allows such "manifest" violations of national law to serve as a basis for voiding treaties.
Second, one of the reasons international law has taken account of national law violations in assent to treaties is to support the democratic institutions involved in treaty ratification. To affirm a treaty assented to in violation of separation of powers principles would be to abet the degradation of those principles. Democracy promotion has emerged as an important international goal since the end of the Cold War, giving new life to this aspect of treaty law. That goal has particular resonance for a U.S.-Iraqi agreement. The United States has made democracy promotion its central justification for the 2003 invasion and has spent countless dollars and political capital creating functional democratic institutions in the country. For the U.S. to claim the benefit of an agreement defying those institutions' doctrinal core - the constitution - would also be an act of extraordinary bad faith.
Third, the profound implications of a SOFA for the Iraqi people require input from their elected representatives. Under current Security Council authorization, Iraq may demand the U.S. troops leave at any time. Under a SOFA withdrawal may be substantially more difficult and, at a minimum, take much more time. In addition, the SOFA's likely provision of immunity to U.S. troops (and potentially private contractors) from the jurisdiction of Iraqi courts may, in reality, mean complete impunity. Iraqi victims will bear the consequences of such a lack of accountability. Both these issues involve difficult political decisions. The Iraqi Parliament, elected on the understanding that it would pass judgment on all treaties, should not be excluded from these decisions with the stakes this high.
- Abby Cohen Smutny, Some Observations on the Principles Relating to Compensation in the Investment Treaty Context
- Jean Kalicki & Suzana Medeiros, Fair, Equitable and Ambiguous: What Is Fair and Equitable Treatment in International Investment Law?
- Antonio R. Parra, The Development of the Regulations and Rules of the International Centre for Settlement of Investment Disputes
- Anne K. Hofmann, The Investor's Right to Waive Access to Protection under a Bilateral Investment Treaty
Monday, August 4, 2008
[S]ome defendants currently incarcerated in Texas and subject to Avena may not have received "review and reconsideration" of their claims of prejudice under the Vienna Convention on the merits. Accordingly, and as an act of comity, if any such individual should seek review in a future federal habeas proceeding, the State of Texas will not only not refrain from objecting, but will join the defense in asking the reviewing court to address the claim of prejudice on the merits, as courts have done for Medellín.
- Bert Denolf, The Impact of Corruption on Foreign Direct Investment
- Zeng Huaqun, Unprecedented International Status: Theoretic and Practical Aspects of the HKSAR'S External Autonomy
- Adhemar G. Bahadian & Mauricio Carvalho Lyrio, FTAA Trade Negotiations: A View of the Brazilian Co-Chairmanship
- Matthew T. Simpson, Mitigating Volatility: Protecting Chinese Investment in Post-Conflict Regions
- Cai Congyan, Structure of Arbitrators and its Implications towards ICSID Mechanism: an Empirical Analysis
- Kappoori M. Gopakumar & Nirmalya Syam, International Nonproprietary Names and Trademarks: A Public Health Perspective
- P. M. Rao, Erik A. Borg, & Joseph Klein, The Information and Communication Technologies and Enforcement of Intellectual Property Rights: A Relationship Perspective
- Bashar H. Malkawi & Haitham A. Haloush, Intellectual Property Protection for Plant Varieties in Jordan