- Curtis A. Bradley & Judith G. Kelley, Foreword
- Curtish A. Bradley & Judith G. Kelley, The concept of international delegation
- Karen J. Alter, Delegating to international courts: self-binding vs. other-binding delegation
- David Epstein & Sharyn O’Halloran, Sovereignty and delegation in international organizations
- Neil S. Siegel, International delegations and the values of federalism
- Oona Hathaway, International delegation and state sovereignty
- Barbara Koremenos, When, what, and why do states choose to delegate?
- Laurence R. Helfer, Monitoring compliance with unratified treaties: the ILO experience
- Tim Büthe, The globalization of health and safety standards: delegation of regulatory authority in the SPS Agreement of the 1994 agreement establishing the World Trade Organization
- Judith L. Goldstein & Richard H. Steinberg, Negotiate or litigate? Effects of WTO judicial delegation on U.S. trade politics
- Michael J. Tierney, Delegation success and policy failure: collective delegation and the search for Iraqi weapons of mass destruction
Saturday, October 4, 2008
Friday, October 3, 2008
The Supreme Court's decision in Medellin v. Texas has attracted great attention and much criticism from international law specialists. It is unclear, however, how much the opinion constrains future judicial decisions. This article addresses two issues that the Court did not resolve. It argues that, as a general manner, the claim that U.S. courts should accord comity to the decisions of international tribunals rests on a false premise, namely that international tribunals have the capacity to engage in reciprocal relations with domestic judiciaries. Second, the Court has not fully considered in what manner a treaty might delegate authority to the Executive to engage in lawmaking, and what factors a court might depend on to determine that such a delegation has occurred.
This volume addresses the question as to where international law fits into the making and implementation of foreign policy during an international crisis in which a State is considering and/or may actually use force. Empirical literature on the law-State behaviour relationship during international crises has not been able to answer this question adequately. The limitations of existing empirical literature are identified as stemming from the limitations of existing positivist, realist and functionalist theoretical explanations of the law-State behaviour relationship. These theoretical approaches, which underpin existing empirical literature on international crises, assume that international law matches what is referred to in this book as its ‘rule-book’ image. This is the notion of international law as a finite set of objective, politically neutral, rules that can be applied so as to distinguish objectively between legal and illegal action. The rule-book image of international law does not match reality, but the assumption that it is true underpins both theoretical literature and references to international law in political rhetoric. The rule-book image and the reality of international law have been reconciled within the theory of International law as Ideology (ILI) as developed by Shirley Scott. This book hypothesises that an ILI perspective offers a better explanation of the law-State behaviour relationship during international crises than rival explanations grounded in positivism, realism or functionalism. Four case studies of State behaviour—of the US, the Soviet Union and the PRC during the Korean War (1950-1953), of the US and UK during the Suez crisis (1956), of the US and the Soviet Union during the Cuban Missile Crisis (1962) and of the US and an alliance of Latin American States during the Dominican Republic crisis (1965)—are used to test the hypothesis. The findings confirm the greater explanatory efficacy of ILI and demonstrate that the significance of international law to foreign policy decision-making during international crises is more than that of deterring the use of force as is assumed by rival theoretical approaches grounded in a rule-book image of international law. International law is shown to serve as a vehicle for inter-State competition during international crises.
Thursday, October 2, 2008
In Swift v. Tyson, Justice Story argued that federalization of the law of negotiable instruments was necessary to thwart local courts from adopting rules that favored local interests at the expense of national welfare. Variations of this argument have been embraced by modern proponents of federalizing many aspects of international law, including customary international law. The argument proves too much, and fails to take account conditions where local decisionmakers have an incentive to reach globally optimal outcomes. The law of negotiable instruments illustrates this point: State law now occupies this field but, contrary to Story's concern, the law in the United States is uniform and stable. Two international conventions currently under negotiation, the Hague Child Support Convention and the UNCITRAL Electronic Commerce Convention, provide further examples of cooperation without mandatory federal oversight.
- John W. Donaldson, Politics and scale in boundary-making: the work of boundary commissions
- Richard N. Schofield, Laying it down in stone: delimiting and demarcating Iraq's boundaries by mixed international commission
- K.J. Rankin, The role of the Irish boundary commission in the entrenchment of the Irish border: from tactical panacea to political liability
- Nicola C. Guy, Linguistic boundaries and geopolitical interests: the Albanian boundary commissions, 1878–1926
- John W. Donaldson, Pillars and perspective: demarcation of the Belgian Congo–Northern Rhodesia boundary
- Lucy Chester, Boundary commissions as tools to safeguard British interests at the end of empire
Engdahl & Wrange: Law at War: The Law as it Was and the Law as it Should Be - Liber Amicorum Ove Bring
The authors of this volume have been inspired by the scholar to which this Liber Amicorum is dedicated - Professor Ove Bring - to look into both the past and the future of international law. Like Ove Bring, they have dealt with many aspects of the law governing the use of force, from arms control to human rights, international criminal law, the UN Charter, and, of course, international humanitarian law. Like Professor Bring, they have allowed themselves to draw trajectories from history and into the future, and have shunned away from neither the controversial nor the speculative, be it on the Middle East, the invasion of Iraq or the independence of Kosovo.
This collection brings together insights from a former UN Legal Counsel, a former Executive Chairman of UNMOVIC, present and former judges of the European Court of Justice, the International Criminal Tribunal for the former Yugoslavia and the International Tribunal for the Law of the Sea, one present and one former member of the International Law Commission, as well as law professors and practitioners, from all Nordic countries, Germany and Australia. Together they form a highly challenging mosaic of perspectives on topical issues like cluster munitions, targeting, human rights in peace operations and the purposes of sentencing in international tribunals.
Wednesday, October 1, 2008
Tuesday, September 30, 2008
- Freya Baetens, Muddling the Waters of Treaty Interpretation? Relevant Rules of International Law in the MOX Plant OSPAR Arbitration and EC Biotech Case
- Despina Chatzimanoli, Sector-Specific and Public Law Approaches to (International) Regulatory Law: A Rationale for the Combined Use of Global Administrative Law and New Governance as Tools for the New "International" Law
- Beryl ter Haar, Open Method of Coordination: A New Stepping Stone in the Legal Order of International and European Relations
- Anja Lindroos & Michael Mehling, From Autonomy to Integration? International Law, Free Trade and the Environment
- Marion Panizzon, Fairness, Promptness and Effectiveness: How the Openness of Good Faith Limits the Flexibility of the DSU
- Timothy Webster, East Asia Institutionalises:
China, and the Vogue for Free Trade Japan
The International Criminal Court (ICC)'s reparations regime seems very geared towards material reparations such as restitution, compensation and rehabilitation. However, a growing number of international instruments, particularly in the human rights field, anticipate that more symbolic forms of reparation such as satisfaction and non-repetition are mandatory. The Article explores what reasons may have led the ICC drafters to not even at least mention symbolic reparations and finds that, apart from a possible trend towards commodification of reparations in general, the perception was probably that only states can grant symbolic reparations, and that ordering individuals to do so might raise human rights problems. None of these arguments are conclusive. Individuals can provide symbolic reparations, and these could be encouraged rather than ordered to avoid the human rights issue. More importantly, the role of the ICC and the Victims Trust Fund will be to use monies as reparation, and nothing will prevent them from using awards so made for symbolic purposes. In fact, strong principle and policy arguments militate in favor of granting a larger role to symbolic reparations in the ICC context, thus helping to make the Court into more of an institution of transitional justice.
The WTO faces an increasing burden of arbitrating trade disputes between WTO member states. The disputes are economically complex and often lead to rulings that require changes in Members' economic policies. This paper provides a positive and normative analysis of a previously unaddressed question: What roles do economic analysis and economists play in WTO adjudication under the Dispute Settlement Understanding (DSU)? We identify a number of problems with the current Secretariat provision of technical economic support to panellists and arbitrators as well as the sources of these problems - including the small number of professional economists in the Secretariat, the lack of diversity to their fields of specialization, and the ad hoc manner in which they have been integrated into the DSU adjudication process thus far. We also point the Secretariat to useful lessons on transparency and political independence learned from other institutions - e.g., central banks, competition authorities, and national trade remedy investigating agencies - that affect economic policy in similar politically sensitive environments. Finally, given a new mandate from WTO Members that DSU adjudicators have access to more sophisticated technical economic support and expertise, we make a number of proposals for reform.
Monday, September 29, 2008
Based on a conference held at the University of Vienna by the International Law Association Committee on the Law of Foreign Investment on Standards of Investment Protection, this book examines the growing interest in substantive treatment standards as a result of the increase in investment arbitration proceedings, and focuses on the identification of a possible consensus of interpretation of these substantive treatment standards.
With contributors who are members of the ILA Committee, as well as renowned experts in the field of investment law from academia and practice, this collection examines the increased attention paid in recent years to substantive treatment standards as a result of the growing number of investment arbitration proceedings which have reached the merits stage. ICSID, NAFTA, UNCITRAL and other awards have helped to provide more specific meaning to the general standards of investment protection found in the majority of international investment instruments, in particular in bilateral investment treaties (BITs). It is thus crucial for a deeper understanding of the present law on the treatment of foreign investment to analyze this developing jurisprudence. This book will provide a first-hand road-map of current investment law and bring readers up to date concerning the most recent developments in the field.
This article explores how the Constitution regulates political commitments in light of recent controversies over the formation of a new U.S. security relationship with Iraq. The United States has long used political - or, non-legally binding - commitments as alternatives to its treaties, but the Executive's authority to do so is un-theorized. And, although international law and international relations literature have studied political commitments extensively, conventional wisdom simply assumes that because they are not international law, they are irrelevant to domestic law as well.
This paper challenges such views. We contend that the Constitution regulates the President's ability to form political commitments and provide a comprehensive constitutional analysis to support this position. We offer a functional explanation for why the Constitution should control political commitments, given how their international and domestic functions parallel those of U.S. treaties. In doing so, we offer the first typology of political commitments, differentiating them according to variables of form, substance, organization and autonomy. Assuming the federal government has a political commitment power, we explain why it does not fit neatly under either the treaty-making power or the foreign affairs power more generally. Instead, we look to constitutional text, original meaning, custom, structure, and prudence to construct a discrete Executive power to make political commitments, subject to legislative checks. Ultimately, we provide a framework for evaluating political commitments that can legitimize the Executive's use of political commitments while guiding decisions on when Congress must require information about-or even approval of-them. We conclude by applying our framework to the Iraqi security agreements.
Significant implications flow from recognizing a political commitment power. Recognition legitimizes the vast majority of Executive political commitments that have gone unsubstantiated to date. It prescribes to Congress grounds for acquiring information about U.S. political commitments, and, more infrequently, approving them. Finally, a political commitment power reconciles existing practice with the Constitution's basic rule of law principle, establishing that the Constitution governs all U.S. international agreements, not just some of them.
- Aldo Chircop, David Dzidzornu, Jose Guerreiro, & Catarina Grilo, The Maritime Zones of East African States in the Law of the Sea: Benefits Gained, Opportunities Missed
- Cheluchi Onyemelukwe, Research Involving Humans in African Countries: A Case for Domestic Legal Frameworks
- Erika Conti, The Referendum for Self-Determination: Is It Still A Solution? The Never Ending Dispute Over Western Sahara
- Ebenezer Durojaye & Annie Muchiri, Addressing the Link Between Gender Inequality and Access to Microbicides in HIV/AIDS Response in Africa
- Noëlle Quénivet, Girl Soldiers and Participation in Hostilities
- Rowland J.V. Cole, Determining the Constitutionality of Reverse Onus Clauses in Botswana
- Edwin C. Mujih, ‘Co-Deregulation’ of Multinational Companies Operating in Developing Countries: Partnering Against Corporate Social Responsibility?
Sunday, September 28, 2008
- Eng Teong See, Revisiting Anticommons and Blockings in the Biotechnology Industry: A View from Competition Law Analysis
- Carolina Roa-Rodríguez & Thom van Dooren, Shifting Common Spaces of Plant Genetic Resources in the International Regulation of Property
- Morten Walløe Tvedt & Magnus Finckenhagen, Scope of Process Patents in Farm Animal Breeding
- the International Convention on Control of Harmful Anti-Fouling Systems on Ships, 2001 (Treaty Doc. 110-13) (Ex. Rept. 110-19); and
- the Protocol to the 1980 Convention Weapons Convention Protocol on Explosive Remnants of War (Treaty Doc. 109-10(C)) (Ex. Rept. 110-22).
The resolutions of ratification, with any reservations, understandings, declarations, and conditions, can be found here.