The gravity of the crimes it adjudicates represents the principal normative justification for the jurisdiction of the international criminal court. The States of the world cooperated to form the Court not in pursuit of their individual national interests, but out of a shared belief that particularly grave international crimes should not go unpunished. In creating an independent criminal court with the power to determine which cases merit international adjudication, the international community endowed an apolitical organization with a form of sovereign authority. States that oppose the Court, in particular the United States, protest loudly that such independence is antithetical to the legal, moral, and political norms of the international order. For States that support the ICC, on the other hand, it is the gravity of the cases and crimes at issue that justifies the sovereignty costs of joining the Court as well as the imposition of international criminal jurisdiction on nationals of non-party States in some circumstances.
Yet despite the acknowledged philosophical centrality of gravity to the ICC's jurisdiction, academic and judicial sources are virtually silent as to the concept's theoretical basis and doctrinal contours. This Article seeks to fill that gap by examining the roles gravity plays in the ICC regime, suggesting a theoretical framework for understanding those roles, and proposing prescriptive approaches to gravity that flow from the theoretical framework. The theory developed herein situates gravity as a key determinant of the ICC's moral and sociological legitimacy. Gravity helps to establish the moral legitimacy of the ICC's exercise of jurisdiction by requiring the Court to conduct a preliminary balancing of sovereignty against justice, and serves to bolster the ICC's sociological legitimacy by encouraging the Court's prosecutor to pursue the most serious situations and cases available. As this nascent institution struggles to establish its legitimacy, one of its most urgent tasks is to develop and articulate a sound approach to gravity. This Article aims to contribute to that process.
Saturday, August 30, 2008
Friday, August 29, 2008
Professor Silberman's article "Some Judgements on Judgments" offers an overview of foreign judgment recognition and enforcement in the United States and in various other countries in the context of discussion of a 2006 proposal of the American Law Institute (for which she was Co-Reporter) to craft a national federal law for the United States on the recognition and enforcement of foreign judgments. Professor Silberman explains how the ALI project, entitled "Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute", was informed by adopting a comparative perspective. National solutions, such as those in Australia, Canada, England, Germany, Italy, and Japan were important guides for the project as were regional arrangements, such as the EU Regulation adopted for Member States of the European Union. The article surveys various national laws on such issues as (1) the types of judgments entitled to recognition/enforcement, (2) the fairness of procedures (3) the role of public policy (4) the jurisdictional basis for the initial judgment and (5) the issue of reciprocity. Professor Silberman views the ALI Project as offering a model for a national law that incorporates a transnational perspective - an approach necessary to fill a vacuum left by the absence of any world-wide convention on the recognition and enforcement of foreign country judgments. Professor Silberman first presented this material as the 2006 Graveson Memorial Lecture, delivered at King's College; the article has been updated through May 2008 to take account of subsequent developments.
The Journal of Private International Law will hold its third major conference at New York University on April 17-18, 2009. As was the practice at the prior conferences at the University of Aberdeen in 2005 and at the University of Birmingham in 2007, we are including a “call for papers” to be presented at the conference with a view to having the final papers submitted for consideration for publication in the Journal. Thus, in addition to a number of previously-invited speakers, a limited number of paper-presenters will be selected on the basis of abstracts of 500 words submitted to Professor Linda Silberman at New York University (firstname.lastname@example.org) and Professor Paul Beaumont at the University of Aberdeen (email@example.com) by October 31, 2008. The abstracts will be considered by Professor Silberman and the editors of the Journal, Professor Paul Beaumont and Professor Jonathan Harris, and a decision made by 1 December, 2008.
There are three specific conference panels planned over the course of the afternoon of April 17th and the full day on April 18th. They are
- International Commercial Law
- US and European Conflicts Methodologies: Is It Time for a U.S. Restatement?
- Transnational Litigation and Arbitration
We will be selecting papers and presenters related to these topics. Even if your paper is not selected for presentation at the Conference given the limited number of slots, we hope you will consider submitting the paper to the Journal for eventual publication. In addition, the morning of April 17th will be devoted to presentations of papers by legal scholars at an early stage in their academic or professional careers, and we particularly encourage doctoral students, students completing fellowships, and those who have relatively recently completed their doctoral studies to offer abstracts on any aspect of private international law. We contemplate smaller parallel sessions in order to offer opportunity for presentations by a large number of such scholars.
Also note that on April 16, 2009, there will be a day-long conference in tribute to the work of Professor Andreas Lowenfeld of New York University. Journal Conference participants may wish to attend that event as well.
Mattoo & Subramanian: Currency Undervaluation and Sovereign Wealth Funds: A New Role for the World Trade Organization
Two aspects of global imbalances - undervalued exchange rates and sovereign wealth funds - require a multilateral response. For reasons of inadequate leverage and eroding legitimacy, the International Monetary Fund has not been effective in dealing with undervalued exchange rates. This paper proposes new rules in the World Trade Organization to discipline cases of significant undervaluation that are clearly attributable to government action. The rationale for WTO involvement is that there are large trade consequences of undervalued exchange rates, which act as both import tariffs and export subsidies, and that the WTO's enforcement mechanism is credible and effective. The World Trade Organization would not be involved in exchange rate management, and would not displace the International Monetary Fund. Rather, the authors suggest ways to harness the comparative advantage of the two institutions, with the International Monetary Fund providing the essential technical expertise in the World Trade Organization's enforcement process. There is a bargain to be struck between countries with sovereign wealth funds, which want secure and liberal access for their capital, and capital-importing countries, which have concerns aboutthe objectives and operations of sovereign wealth funds. The World Trade Organization is the natural place to strike this bargain. Its General Agreement on Trade in Services, already covers investments by sovereign wealth funds, and other agreements offer a precedent for designing disciplines for these funds. Placing exchange rates and sovereign wealth funds on the trade negotiating agenda may help revive the Doha Round by rekindling the interest of a wide variety of groups.
Thursday, August 28, 2008
Terrorists will continue to pose security threats to the United States. In response, legal scholars have debated whether the United States should press to legalize preemptive self-defense. Hawks and doves have each explained their respective points of view. However, their positions remain divergent. This Article bridges the gap between them. It approaches the problem from a policy orientation that combines legal analysis, anthropological research, and empirical modeling. It first widens the debate about preemptive self-defense. The key policy issue is about whether preemptive attacks should be launched, whether the legal justification comes from self-defense, Chapter VII of the UN Charter, or elsewhere. Hawks and doves disagree because they respectively prioritize national security and global order. The article breaks their impasse by accepting, for the sake of engaging both sides, that national security has primary importance. It then tests the assumption that wider uses of preemptive military force would make the United States safer. Drawing from field interviews in Iran and Pakistan of the Taliban, government officials and leaders of Islamic parties, the Article hypothesizes that while there are definite costs in every U.S. military preemption, the security benefits are often indeterminate because the use of force risks animus and retaliation against the United States. The Article then confirms this hypothesis using statistical regressions of U.S. government data on U.S. use of force and attacks on the U.S. from 1948 to 2006. These regressions reveal that there is insufficient evidence to conclude that preemptive attacks will make the United States safer. The Article thus concludes that before military preemption is deployed, the U.S. government should require its proponents to meet a high burden of proof that the security benefits of preemption outweigh its costs. As an alternative to a policy of preemptive attacks, this Article recommends five strategies that could be more easily justifiable and might better promote U.S. security.
The process of global economic integration has accelerated during the past three decades, with world foreign direct investment (FDI) flows rising from $40-50 billion at the beginning of the 1980s to $1.5 trillion in 2007. Yet, in spite of the trend towards market liberalization and privatization during this period, the role of the state has arguably become more important in recent years. Indeed, many of the emerging market state-owned enterprises (SOEs) that survived the earlier waves of privatization are now flourishing, thanks in particular to booming global commodity prices and increased export earnings. Emerging market governments are also drawing on their accumulating exchange reserves to establish sovereign wealth funds for investment abroad. These two developments have contributed to a substantial increase of outward FDI from emerging markets, reaching $210 billion in 2006 (five times world FDI flows during the early 1980s). For example, Chinese state-controlled entities are estimated to account for about four-fifths of the country's outward foreign direct investment.
In response to the rising importance of state-owned enterprises and sovereign wealth funds (SWFs)– collectively referred to here as “state-controlled entities” (SCEs) – policy-makers in a number of countries are re-thinking their own investment regulatory frameworks. The world has thus witnessed a resurgence of the role of the state vis-à-vis markets, with governments acting as both a source of – and potential impediment to – FDI.
The principal issues raised by this phenomenon will be addressed systematically in a conference – to take place October 1-2, 2008 at Columbia University – organized so far by the Vale Columbia Center on Sustainable International Investment, Columbia Law School’s Center on Global Legal Problems, the World Trade Institute, and the University of Fribourg (Switzerland), in cooperation with Nankai University (China). The Conference will examine the role of state-controlled entities in the world FDI market, with a particular emphasis on the role of sovereign investment agencies (those parts of SWFs engaged in FDI), and will explore the range of policy responses being considered to deal with this problématique.
The Annual Conference 2008 will focus on climate change. Concerns about the effects of climate change are being considered at national and international levels in a variety of disciplines. The impact on international law has not been explored to any significant extent. This conference will explore the effects of climate change on international law, both from within and outside the law, and through international and comparative perspectives. This is a very timely conference with the growing recognition of the need for international cooperation and regulation, as part of the rule of law, being a vital aspect for the future.
Am 2. Februar 2007 wurde an der Universität Basel zu Ehren und aus Anlass des 70. Geburtstags von Prof. Dr. Dr. h.c. Luzius Wildhaber, LL.M., J.S.D., langjähriger Richter und Präsident des Europäischen Gerichtshofs für Menschenrechte (EGMR) in Strassburg, ein Kolloquium mit dem Titel „Neue Herausforderungen und Perspektiven für den Schutz der Menschenrechte“ durchgeführt.
Im Zentrum dieses Kolloquiums standen drei Referate von ausgewiesenen Experten auf dem Gebiet des nationalen und internationalen Menschenrechtsschutzes: Prof. Dr. Giorgio Malinverni, Richter am EGMR, verglich anhand einzelner Sozialrechte der Europäischen Menschenrechtskonvention und der Europäischen Sozialcharta die Praxis des EGMR mit jener des Europäischen Sozialausschusses; Prof. Dr. Matthias Herdegen von der Universität Bonn referierte über die „Neuen Herausforderungen und Perspektiven für den Schutz der Menschenrechte in einer Welt des technischen Fortschritts und der wirtschaftlichen Verflechtung“; Prof. Aharon Barak, ehemaliger Präsident des Obersten Gerichtshofs von Israel, schilderte die neuen Herausforderungen und Perspektiven für den Schutz der Menschenrechte aus der Sicht eines nationalen Richters.
Sowohl die Referate als auch die anschließenden Diskussionsvoten sind in diesem Buch abgedruckt.
Choice of law is a mess. Or so it is said. According to the conventional wisdom, choice-of-law doctrine does not significantly influence judges' choice-of-law decisions. These decisions are instead motivated by judicial biases in favor of domestic over foreign law, domestic over foreign litigants, and plaintiffs over defendants. Furthermore, choice-of-law decisions are highly unpredictable.
This Article challenges each of these "mess" claims and demonstrates what is at stake for global governance. Part I provides a brief overview of choice-of-law doctrine. Part II documents the mess claims. Part III presents empirical evidence that choice of law might not be such a mess after all. Using an original dataset of international choice-of-law decisions by U.S. district court judges in tort cases, and statistical techniques including multivariate logit analysis, Part III suggests that choice-of-law doctrine indeed influences these decisions; that these decisions are not biased in favor of domestic law, domestic litigants, or plaintiffs; and that they are actually quite predictable. The mess claims, it turns out, may be myths - at least in transnational tort cases. Part IV demonstrates the implications of these findings for global economic welfare, transnational rule of law, and transnational bargaining. The analysis strongly suggests that the conventional wisdom exaggerates what is wrong with choice of law and underestimates the positive contributions that U.S. judges make to global governance.
This article discusses the law of treaty implementation in the early United States, with particular reference to whether and when treaties are self-executing and the legitimacy of the last in time rule for conflicts between treaties and federal statutes. Other writers have used historical materials to support a variety of claims about these topics. Relying on the most comprehensive analysis of the historical materials to date, this article takes issue with nearly all of these writers. Most importantly, I do not contend that historical materials provide conclusive answers to the problems of treaty implementation. Rather, my historical narrative demonstrates a far greater degree of ambiguity during the founding period on critical issues than other writers have admitted. The lack of clear original intentions was particularly true at the separation of powers level, which meant that the role of the House in treaty-making and implementation remained unclear. Solutions to this problem emerged only through a series of debates in Congress. Subsequent Supreme Court decisions effectively ratified the most broad-based of those solutions. Indeed, the congressional debates shed important light on the interpretation of those decisions - an issue on which, once again, I depart from most commentators. Seen in this light, the law of treaty implementation emerges as an area in which original understandings provide little help. Nor can the solutions reached in the early nineteenth century claim the status of immutable rules. Rather, the congressional debates provide an example for our own time. The ideas and issues that came to Congress provide a framework and context for a debate that is necessarily ongoing and open-ended. To that end, I suggest that the general terms of Congress's solution should continue to guide doctrine - not because of their pedigree, but because they accommodate the relevant interests in an appropriate manner. Further, putting these debates into their historical contexts also prepares the way for deepening scholarly discussion of the political theory of the treaty power. The conclusion argues that the early debates were most critically about the nature and scope of the federal government's sovereign authority, which in turn provides surprising and perhaps even uncomfortable insights into the claims made by contemporary inheritors of these debates.
Wednesday, August 27, 2008
Die "soziale Frage" ist in ihren nationalen und internationalen Aspekten längst zum globalen Anliegen und zum Gegenstand der internationalen Rechtsordnung geworden. Denn wenn einerseits die grenzüberschreitende Wirtschaftstätigkeit durch Völker- und Europarecht liberalisiert wird, andererseits aber ihre soziale Abfederung ausschließlich in der nationalen Verantwortung verbliebe, entstünde eine gefährliche Schieflage. Hier kommen die wirtschaftlichen, sozialen und kulturellen Menschenrechte auf universeller wie auf regionaler Ebene ins Spiel. Sie bilden komplementäre Gewährleistungen zu den bürgerlichen und politischen Rechten. Nur gemeinsam können sie allen Menschen überall auf der Welt ein menschenwürdiges Dasein sichern - unerlässliche Voraussetzung für das Ideal einer freien, gerechten, multikulturellen und friedlichen Welt. Die Globalisierung des 20. Jahrhunderts hat Kräfte freigesetzt, die diesem Ideal dienen, ihm aber auch entgegenwirken können. Aufgabe des Völker- und Europarechts im 21. Jahrhundert ist es, diese Kräfte zu bändigen und für das Ideal nationaler und internationaler sozialer Gerechtigkeit einzusetzen. Wie lassen sich die menschenrechtlichen Garantien dafür nutzbar machen? Welchen Beitrag können sie zur Beseitigung von Armut und Unterentwicklung leisten? Aus welchen Gründen übernehmen arme und reiche Staaten in dieser Hinsicht nur zögernd konkrete völker- und europarechtliche Verpflichtungen?
Die im vorliegenden Band veröffentlichten Beiträge sind aus einer Ringvorlesung des Kieler Walther-Schücking-Instituts für Internationales Recht hervorgegangen. Sie beleuchten aktuelle Aspekte der Problematik aus universeller oder regionaler Sicht und regen damit zum Weiterdenken und zur Weiterarbeit an: in der UNO, ILO, UNESCO und WTO, aber auch in der Organisation Amerikanischer Staaten, der Afrikanischen Union und nicht zuletzt im Europarat und der Europäischen Union. Die internationale Gemeinschaft insgesamt trifft Verantwortung für eine soziale und internationale Ordnung, in der sämtliche Rechte und Freiheiten aller Menschen voll verwirklicht werden können.
- Carlo Focarelli, La dottrina della "responsabilità di proteggere" e l'intervento umanitario
- Franco Mosconi, Europa, famiglia e diritto internazionale privato
- Alfredo Terrasi, Trasmissione dei dati personali e tutela della riservatezza: l'Accordo tra Unione europea e Stati Uniti del 2007
- Marcello Di Filippo, Note e commenti - La libera circolazione dei cittadini comunitari e l'ordinamento italiano: (poche) luci e (molte) ombre nell'attuazione della direttiva 2004/38/CE
- Alessandra Gianelli, Panorama - Il carattere assoluto dell'obbligo di non-refoulement: la sentenza Saadi della Corte europea dei diritti dell'uomo
- Roberto Mastroianni, Panorama - Anche le leggi precedenti la Convenzione europea dei diritti dell'uomo debbono essere rimosse dalla Corte costituzionale?
- Stefano Dorigo, La notifica degli atti tributari all'estero nella prospettiva comunitaria dopo la sentenza n. 366/07 della Corte costituzionale
This book deals with the transformation of the international legal system into a new world order. Looking at concepts and principles, processes and emerging problems, it examines the impact of global forces on international law. In so doing, it identifies a unified set of legal rules and processes from the great variety of state practice and jurisprudence. The work develops a new framework to examine the key elements of the global legal system, termed the 'four pillars of global law': verticalization, legality, integration and collective guarantees. The study provides an in-depth analysis of the differences between traditional international law and the new principles and processes along which the universal society and world power are organized and how this is related to domestic power.
The book addresses important changes in key legal issues; it reconstructs a complex legal framework, and the emergence of a new international order that has still not been studied in depth, providing a compass that will prove a useful resource for students, researchers and policy makers within the field of law and with an interest in international relations.
Tuesday, August 26, 2008
Scharf & Dowd: No Way Out? The Question of Unilateral Withdrawals of Referrals to the ICC and Other Human Rights Courts
Growing out of the authors' work for the International Criminal Court, which was sponsored by a grant from the Open Society Institute, "No Way Out" examines one of the most vexing legal questions facing the International Criminal Court -- whether a State that has referred a case to the Court can subsequently withdraw its referral as part of a domestic peace agreement? The issue has arisen with respect to Uganda's interest in withdrawing its self-referral as part of a peace deal with the leaders of the Lord's Resistance Army. This article examines the Rome Statute, the drafting history, and the expert commentaries, together with the statutory and case law of the other major human rights courts and bodies, and the Vienna Convention on the Law of Treaties, in an effort to provide a comprehensive analysis of whether a State Party can lawfully withdraw a referral from the ICC. The authors concludes that the only situation in which a unilateral withdrawal of a referral should be deemed legitimate is when it occurs during the narrow temporal window between when a referral is made to the Court and when the Court actually exercises its jurisdiction over that case by launching an investigation and providing notice to all interested parties. The research and analysis contained in the article is also relevant to the more general question of whether States can withdraw their referrals to human rights bodies such as the European Court of Human Rights and the Inter-American Court of Human Rights.
This brief note discusses the legal ramifications of the unilateral termination of occupation. The note seeks to characterize the moment of termination and examines the obligations of the occupant during (and possibly after) the termination process.
- Robert B. Kovacs, Challenges to International Arbitral Awards: The French Approach
- Alok Jain, Pathological Arbitration Clauses and Indian Courts
- Ilias Bantekas, The Private Dimension of the International Customary Nature of Commercial Arbitration
- Dragor Hiber & Vladimir Pavić, Arbitration and Crime
- Gabrielle Kaufmann-Kohler & Fan Kun, Integrating Mediation into Arbitration: Why It Works in China
- José Rosell, The CMS Case: A Lesson for the Future?
- Yulia Andreeva, The Tribunal in Malaysian Historical Salvors v. Malaysia Adopts a Restrictive Interpretation of the Term “Investment”
- Sarosh Zaiwalla, Commentary on the Indian Supreme Court Judgment in Venture Global Engineering v. Satyam Computers Services Ltd.
- Barbara Steindl, Watch Out and Act!: Recent Case Law on Due Process in Light of Austrian Law and the 1958 New York Convention
- Issues of State Responsibility and Jurisdiction
- Kaj Hobér, Arbitration Involving States
- John Savage, Investment Treaty Arbitration: An Asian Perspective
- Francisco Orrego Vicuña, Arbitration Investment Disputes: Issues of Jurisdiction
- Christopher H. Schreuer, The Concept of Expropriation Under the ECT and Other Investment Protection Treaties
- Katia Yannaca-Small, Indirect Expropriation and the Right of the Governments to Regulate Criteria to Articulate the Difference
- Audley Sheppard, The Distinction Between Lawful And Unlawful Expropriation
- The Umbrella Clause
- Craig S. Miles, Where’s My Umbrella? An "Ordinary Meaning" Approach to Answering Three Key Questions That Have Emerged from the "Umbrella Clause" Debate
- Laura Halonen, Containing the Scope of the Umbrella Clause
Monday, August 25, 2008
Cooper, Hawkins, Jacoby, & Nielson: Yielding Sovereignty to International Institutions: Bringing System Structure Back In
In this paper, we identify authority as an important dimension of variance among international institutions. Essentially, the greater the authority of international institutions, the more sovereignty states have yielded to them. Highly authoritative institutions can make decisions that legally bind domestic governments on specified issues even without those governments’ consent. Over the past 20 years, scholars have viewed the evolution of international institutions largely through the lens of state motives. We argue that it is time to think more systematically about the role of the structure of the international system. Two factors that impact international structure—previously existing institutions and the presence of systemic shocks—can complement theories of actor motives to better account for the level of sovereignty yielded to authoritative international institutions. We illustrate the potential importance of including structural variables by applying the argument to sets of cases in currency cooperation and human rights. We find that structural factors increase the probability of states yielding sovereignty to international institutions, though structural factors are only a permissive cause of institution formation.
This chapter examines the World Trade Organization (WTO) from the social scientific perspective of constitutional economics. This chapter thus seeks to identify the causes and consequences of constitutionalization. Assuming that states act with intentionality and accuracy in their establishment of organizational features, the cause of constitutionalization is the desire to effect the consequences of constitutionalization, so the focus here is on the potential consequences of constitutionalization in and in connection with the WTO.
- Monika C. E. Heymann, International Law and the Settlement of Investment Disputes Relating to China
- Chios Carmody, A Theory of WTO Law
- Joost Pauwelyn, New Trade Politics for the 21st Century
- Steven Bernstein & Erin Hannah, Non-State Global Standard Setting and the WTO: Legitimacy and the Need for Regulatory Space
- Bart De Meester, Testing European Prudential Conditions for Banking Mergers in the Light of Most Favoured Nation in the GATS
- Richard Diamond, Privatization and The Definition of Subsidy: A Critical Study of Appellate Body Texturalism
- Michael McKenzie, Climate Change and the Generalized System of Preferences
Sunday, August 24, 2008
There is a fundamental yet understudied link between the integration of substantive norms in international law and the consolidation of international authority. As well-reflected in WTO case-law (e.g., EC-Swordfish, EC-Biotech, Mexico-Soft Drinks and US-Shrimp) but also in international law more generally, norm integration and authority integration maintain a basic correlation that also has elements of causation. The integration of norms between branches of international law leads to pressures towards the integration of authority. As a result, the general reluctance to adopt and adhere to comprehensive norm-integrating principles in international law may stem from institutional fears relating to the potential impact of such principles upon the structure of the authority of international decision-making bodies. The quest for international legal consistency through normative integration, however commendable it may be in itself, is at least subliminally identified with the prospect of a centralization of international authority, which is a considerably less popular proposition. However, not all principles of normative integration were created equal in this respect. By comparing the integrative effects of Article 31(3)(c) VCLT and Paragraph 4 Rio (mainly in the context of the WTO, but with universal implications), the article shows that softer, less binding models of normative integration may permit decision makers to integrate norms with less pronounced (and less threatening) influences on the allocation of authority. This understanding presents proponents of normative integration with a strategy worth considering, that of the path of least resistance. Normative integration that creates less pressures towards authority integration has better chances of being adopted by tribunals, and hence, has better prospects of attaining its normative goals.