Çali & Wyss: Authority of International Institutions: The Case for International Human Rights Treaty Bodies

Başak Çali (University College London - Political Science) & Alice Wyss (University College London - Political Science) have posted Authority of International Institutions: The Case for International Human Rights Treaty Bodies. Here's the abstract:

International human rights law treaties and their monitoring institutions raise important questions about the moral standing of institutions outside of the state and on what terms such institutions should be understood in political theory. The unmatched institutional nature of human rights treaty bodies presents a challenge for political theorists as it is not clear what the theoretical conception of these institutions ought to be and what concepts are relevant in assessing the point of these institutions. The aim of this article is to supply an argument for what the appropriate conception of authority applied to human rights bodies, as a distinct type of international institution, should be. For this, we survey the repertoire of moral reasons available in assigning authority to human rights treaty bodies in the current literature and assess the strengths and weaknesses of such reasons. The central argument of the article is that a successful theory for the justification of authority of international institutions has to account, firstly, for the very purpose of the authoritative relationship and, secondly, provide special and sufficient content-independent reasons to comply with the directives of these institutions.

Yearbook of the United Nations Now Online

The Yearbook of the United Nations, which is an indispensable resource for research on the organization, is now available online here.

Bodansky: Is There an International Environmental Constitution?

Daniel Bodansky (Univ. of Georgia - Law) has posted Is There an International Environmental Constitution? (Indiana Journal of Global Legal Studies, forthcoming). Here's the abstract:

The surge of interest among international lawyers in "constitutionalism" represents one of several efforts to reconceptualize international governance; others include the research projects on global administrative law and legalization. The paper applies the constitutionalist lens to international environmental law - one of the few fields of international law to which constitutionalist modes of analysis have not yet been applied. Given the protean quality of the terms "constitution" and "constitutionalism," the paper begins by unpacking these concepts. By disaggregating these concepts into a number of separate variables, which have a more determinate, unambiguous meaning, we can answer the question, "is there an international environmental constitution?", in a more nuanced way - not in an all or nothing fashion, but by considering the extent to which international environmental law has constitutional dimensions. The paper concludes that, although individual treaty regimes have constitutional features, international environmental law as a whole lacks the hallmarks of a constitutional order.

Reich: Due Process and Sanctions Targeted Against Individuals Pursuant to Resolution 1267 (1999)

Johannes Reich (Univ. of Basel - Law) has posted Due Process and Sanctions Targeted Against Individuals Pursuant to Resolution 1267 (1999) - With an Added Note on European Court of Justice, Judgment in Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, September 3, 2008 (Yale Journal of International Law, forthcoming). Here's the abstract:

This paper assesses the legal consequences of the framework established pursuant to Resolution 1267 (1999) and subsequent decisions by the United Nations Security Council imposing sanctions on individuals not necessarily associated with states or state actors. This shift in focus piercing the veil of statehood raises pressing issues of both international and domestic constitutional law, human rights law, and administrative law (including the emerging field of international administrative law) as the current system lacks basic guarantees of fair trial and effective remedy. After analyzing the current framework, this paper critically reviews two decisions evaluating this new generation of "targeted" sanctions imposed by the United Nations, namely the case regarding Youssef Mustapha Nada v. State Secretariat for Economic Affairs of the Swiss Confederation (SECO) ["Nada-case"] by the Swiss Federal Supreme Court and - in an added note - the case regarding Yassin Abdullah Kadi et al. v. Council and Commission ["Kadi-decision"] by the European Court of Justice. Based on this analysis, this paper argues for installing an independent administrative mechanism to review both the listing and de-listing decisions made by the Security Council as only a mechanism at the level of the United Nations can, at the same time, preserve the crucial framework of international implementation of collective measures and also validate the core principles of the rule of law.

Call for Papers: Instability and Uncertainty? International Law in a Multipolar World

The 2009 International Law Association (British Branch) Spring Conference will take place April 17-18, at the University of Hull. The topic is: "Instability and Uncertainty? International Law in a Multipolar World." Here's the call for papers:

Since the creation of the United Nations in 1945, international law has sought to configure itself as a universal system. And yet, despite the best efforts of international institutions, scholars and others to exert the universal application of international law, its relevance and applicability has been influenced, if not directed, by political power. The Cold War saw a concentration on co-existence in a bi-polar world, which many have argued brought stability to the international legal system. The dissolution of the Soviet Union in 1991 provided the opportunity for a truly universal system – a ‘new world order’, applicable regardless of power arrangements. Instead, it quickly became apparent that international law would have to address the dilemmas inherent in regulating a system dominated by a single global power.

Over the past decade, discourse has tended to focus on the implications for international law of a unipolar world, characterised by US hegemony. It would seem, however, that the international system may now be experiencing a tendency towards multipolarity, with various sites of power able to exert a telling influence on international relations and international law. Recent events such as Russia’s excursion into Georgia, the breakdown of the Doha round of trade negotiations, the USA’s questionable actions in the war on terror, the prominence of emerging nuclear powers, China’s assertions of its own interests on a global scale, and the rise of regional trading blocs, all pose significant questions for international law and the international legal order. Can ‘universal’ international law exist in the absence of a global hegemon? To what extent can sovereign equality persist in a world of competing ‘great powers’ and ‘spheres of influence’? What relevance will the United Nations retain? Is there an ‘international community’ and, if so, does it exist on a multilateral or a regional level?

The 2009 ILA (British Branch) Spring Conference will seek to address these, and other, questions that a multipolar world poses for international law.

Proposals are sought for papers on topics of interest within the conference theme. All international lawyers – practitioners, academics and doctoral students – regardless of seniority, institutional affiliation, gender or nationality, are invited to submit proposals. Abstracts of no more than 500 words should be submitted by Friday 12th December 2008. Submissions should include the author’s name and contact details (including email address), and be accompanied by a brief curriculum vitae.

Applications should be sent, preferably by email to M.Happold@hull.ac.uk, or by post to Dr Matthew Happold, Law School, University of Hull, Hull HU6 7RX. The results of the selection process will be notified to applicants in January 2009.

Workshop: Franck, Kingsbury, Struyven

Susan D. Franck (Washington & Lee Univ. - Law) will give a talk today at the University of Cincinnati Faculty Workshop Series on "Investment Arbitration and Its Discontents: Empirically Analyzing Outcomes."

Benedict Kingsbury (New York Univ. - Law) will give a talk today at the Harvard Law School International Law Workshop on "Punishment of States and Peoples in International Law: History and Policy."

Olivia Struyven (Office of the Prosecutor, International Criminal Court) will give a talk today at the University of Cambridge Lauterpacht Centre for International Law on "Victims' Participation in ICC Proceedings."

Trachtman: The Economic Structure of International Law

Joel P. Trachtman (Tufts Univ. - Fletcher School of Law and Diplomacy) has published The Economic Structure of International Law (Harvard Univ. Press 2008). Here's the abstract:

The Economic Structure of International Law presents a rationalist analysis of the structure of international law. It employs social scientific techniques to develop an understanding of the role of law in international society. In doing so, it delves into the question of compliance and reveals the real-world circumstances under which states might adhere to or violate international law.

Joel P. Trachtman explores such topics as treaty-making and jurisdiction; the rise, stability, and efficiency of custom; the establishment of international organizations; and the structure and role of international legal dispute settlement. At the core of the book lies the question of the allocation of legal power to states. The Economic Structure of International Law presents policymakers and scholars with an over-arching analytical model of international law, one that demonstrates the potential of international law, but also explains how policymakers should choose among different international legal structures.

Aust: The Role of Domestic Courts in Treaty Enforcement - United Kingdom

Anthony Aust has posted the chapter on the United Kingdom from the forthcoming volume The Role of Domestic Courts in Treaty Enforcement - A Comparative Study, edited by David Sloss and Derek Jinks. Previously posted chapters can be found here, here, here, and here.

Workshops: Abi-Saab, Brody, Hardy, Hoffmeister, Orford, Sugarman

Georges Abi-Saab (Graduate Institute of International and Development Studies - Law) will give a lecture today at the Geneva Academy of International Humanitarian Law and Human Rights on "War Crimes: The Evolution of the Concept."

Paul Hardy (UK Crown Prosecution Service), David Sugarman (Lancaster Univ. - Law), & Reed Brody (Human Rights Watch) will speak today at the Chatham House International Law Discussion Group on "Universal Jurisdiction for International Crimes."

Frank Hoffmeister (Free Univ. of Brussels - Law) will give a talk today at the University of Oxford Public International Law Discussion Group on "The Contribution of EU Practice to International Law."

Anne Orford (Univ. of Melbourne - Law) will give a lecture today at the London School of Economics and Political Science International Humanitarian Law Project on "Jurisdiction without Territory: From the Holy Roman Empire to the Responsibility to Protect."

ICTY: Appeals Chamber Judgment in the Case Against Milan Martić

Today, the ICTY Appeals Chamber rendered its judgment in the case (No. IT-95-11) against Milan Martić, a former political leader of the Croatian Serbs. On June 12, 2007, Martić was convicted of sixteen counts of crimes against humanity (persecutions, murder, imprisonment, torture, inhumane acts, deportation, forcible transfer) and war crimes (murder, torture, cruel treatment, wanton destruction of villages, destruction of educational or religious institutions, plunder, attacks on civilians) for acts in connection with the forcible removal of the non-Serb population of the Krajina region of Croatia. He was sentenced to thirty-five years imprisonment (Trial Chamber judgment here).

In today's judgment (judgment not yet available online; summary here; press release here), the Appeals Chamber reversed Martić's conviction on five counts (at least in part) but found that the Trial Chamber erred in failing to convict him on four counts. The Appeals Chamber found that these errors had minimal impact on Martić's overall culpability for purposes of sentencing and, therefore, affirmed the his sentence. Judge Schomburg appended a separate opinion on the issue of joint criminal enterprise.

ICJ: Request for Interpretation of the Avena Judgment (Now Under Deliberation)

Following its past practice, the International Court of Justice has set the case concerning Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) for deliberation on the merits without holding oral proceedings. (ICJ press release here; case materials here.) In accordance with Article 98(4) of the Rules of Court, the parties completed the submission of their further written observations this past Monday. The Court will deliver its judgment in due course.

UN: General Assembly Requests ICJ Advisory Opinion on Kosovo

The General Assembly today requested that the International Court of Justice issue an advisory opinion on the legality of Kosovo's declaration of independence. The vote was 77 in favor, 6 opposed, and 74 abstentions. The United States voted against the resolution. The specific question referred to the Court was: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" I previously posted the draft General Assembly resolution here. Financial Times story here; AFP story here; AP story here.

Chesterman: The UN Security Council and the Rule of Law

Simon Chesterman (New York Univ. - Law, Singapore Programme) has posted The UN Security Council and the Rule of Law. Here's the abstract:

The UN Security Council is the most powerful multilateral political institution. It has grown well beyond its initial function as a political forum and serves important legal functions. Traditionally, this included determining that a threat to the peace, breach of the peace, or act of aggression had occurred and prescribing specific, legally binding obligations on Member States under Chapter VII of the UN Charter. Today it embraces establishing complex regimes to enforce its decisions and passing resolutions of general rather than specific application. These expanded powers can facilitate swift and decisive action, but have raised questions about the legal context within which the Council operates and the extent to which the Council itself adheres to the rule of law.

This report, circulated as a document of the United Nations in all UN languages, draws on a series of meetings convened by New York University School of Law and the Permanent Mission of Austria to the United Nations and are intended to advance debate on the Council's role in strengthening a rules-based international system and maintaining international peace and security under the rule of law.

New Issue: Arbitration International

The latest issue of Arbitration International (Vol. 24, no. 3, 2008) is out. Contents include:

• James Crawford, Treaty and Contract in Investment Arbitration
• David W. Rivkin, Towards a New Paradigm in International Arbitration: The Town Elder Model Revisited
• Alexis Mourre, The Set-off Paradox in International Arbitration
• Amokura Kawharu, New Zealand’s Arbitration Law Receives a Tune-Up: A Review of Recent Amendments to the New Zealand Arbitration Act 1996
• Jean Kalicki & Suzana Medeiros, Investment Arbitration in Brazil: Revisiting Brazil’s Traditional Reluctance Towards ICSID, BITs and Investor-State Arbitration
• Mara Valenti, The Most Favoured Nation Clause in BITs as a Basis for Jurisdiction in Foreign Investor–Host State Arbitration
• Agora: Thoughts on Fiona Trust

New Issue: ASA Bulletin

The latest issue of the ASA Bulletin (Vol. 26, no. 3, 2008) is out. Contents include:

• Manuel Arroyo, Dealing with Dissenting Opinions in the Award: Some Options for the Tribunal
• Thomas Clay, La Convention de New York vue par la doctrine française
• Jacob C. Jørgensen, Expert Witnesses in Danish Arbitration

Workshops: Becker Lorca, Gourgourinis, Rittich, Satterthwaite

Arnulf Becker Lorca (King's College London - Law) will give a talk today at the International Law Association - British Branch International Law Seminar at University College London on "Universal International Law: Histories of Imposition, Circulation and Appropriation, 1850s-1900s."

Anastasios Gourgourinis (University College London - Law) will give a talk today at the University of Edinburgh School of Law Legal Theory Workshop on "The legal narrative of the proposition of international law as a 'system' in the judicial settlement of international disputes: an analysis of the normative scope-type, function-type and process-type differentiations in the realm of the international legal system."

Kerry Rittich (Univ. of Toronto - Law) will give a talk today at the Center for Transnational Legal Studies Faculty Transnational Law Colloquium on "Development by Measurement: The Millennium Development Goals in Global Governance." Those who are interested in attending should email cole@law.georgetown.edu.

Margaret Satterthwaite (New York Univ. - Law) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on Global Governance and Legal Theory on "Human Rights Indicators in Global Governance."

New Issue: International Organization

The latest issue of International Organization (Vol. 62, no. 4, Fall 2008) is out. Contents include:

• Katharina Holzinger, Christoph Knill, & Thomas Sommerer, Environmental Policy Convergence: The Impact of International Harmonization, Transnational Communication, and Regulatory Competition
• Randall W. Stone, The Scope of IMF Conditionality
• Edward D. Mansfield & Eric Reinhardt, International Institutions and the Volatility of International Trade
• Kerry A. Chase, Moving Hollywood Abroad: Divided Labor Markets and the New Politics of Trade in Services
• Emilie M. Hafner-Burton, Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem
• Nigel Lo, Barry Hashimoto, & Dan Reiter, Ensuring Peace: Foreign-Imposed Regime Change and Postwar Peace Duration, 1914–2001
  

Lecture: Jackson on "Constitutional Problems of Adjudication of International Economic Law Matters"

John Jackson (Georgetown Univ. - Law) will give a lecture today at the European University Institute on "Constitutional Problems of Adjudication of International Economic Law Matters: Reflections on Attitudes and Perspectives of U.S. Courts and WTO Dispute Settlement Bodies."

Blog: Everyday International Law

You might be interested in another, relatively new, international law blog, Everyday International Law, which "will look at the impact of International Law on current events happening in the United States of America."

Criddle: & Fox-Decent: A Fiduciary Theory of Jus Cogens

Evan J. Criddle (Syracuse Univ. - Law) & Evan Fox-Decent (McGill Univ. - Law) have posted A Fiduciary Theory of Jus Cogens (Yale Journal of International Law, forthcoming). Here's the abstract:

For several decades, international law has recognized certain norms such as the prohibitions against genocide, slavery, and military aggression as "jus cogens"- peremptory law which supersedes conflicting international treaties and customs. Despite widespread acceptance of the jus cogens concept, legal theorists continue to debate whether peremptory norms derive their legal authority from state consent, natural law, or the demands of international public order. Anxiety over peremptory norms' legal basis has frustrated efforts to clarify the scope and content of jus cogens, as well as placing peremptory norms on a collision course with inherited notions of state sovereignty.

Drawing on Immanuel Kant's conception of fiduciary relations, this Article develops a new theory of jus cogens based on the idea that states are fiduciaries of their people. According to the fiduciary theory, peremptory norms do not stand in opposition to state sovereignty; rather, they are constitutive of state sovereign authority because all states owe their subjects a fiduciary obligation to comply with such norms. The fiduciary model of the state resolves the longstanding tension in international legal theory between peremptory norms and state sovereignty and points to discrete formal and substantive criteria for identifying peremptory norms.

New Issue: Journal of World Investment & Trade

The latest issue of the Journal of World Investment & Trade (Vol. 9, no. 4, August 2008) is out. Contents include:

• J. Roman Pleberack, The Expanding Scope of the Fair and Equitable Treatment Standard: Have Recent Tribunals Gone Too Far?
• Rokiah Alavi, Lim Heng Gee, & Ida Madieha Abdul Ghani Azmi, Does IPRs Protection Influence Economic Growth and FDI Inflows in Malaysia?
• Badar Alam lqbal, Doha Development Round: Developed vs Emerging Economies
• Jai S. Mah, Foreign Direct Investment Inflows and Economic Development: The Case of Shenzhen Economic Zone in China
• Ngila Mwase, Coordination and Rationalization of Sub-Regional Economic Integration Institutions in Eastern and Southern Africa: SACU, SADC, EAC and COMESA

Ecuador's New Constitution and International Arbitration

[Editor's note: The following is a guest post by Sarah Ganslein, a third-year student at the University of Cincinnati College of Law. Sarah will be an associate in the Washington, D.C. office of WilmerHale upon graduation.]

On September 28, 2008, 64% of Ecuadorians voted in favor of adopting a new constitution, representing a victory for President Rafael Correa. The new constitution – Ecuador’s twentieth – allows Correa to run for a second and third term (possibly keeping him in office until 2017) and gives him the power to reform the courts and central bank, among other institutions. The 444 articles, which represent the work of Ecuador’s Constituent Assembly, include such reforms as legalizing abortion, providing the same rights to homosexual and heterosexual couples, and offering pensions to stay at home mothers, free health care, and education.

While many of the articles focus on domestic reforms, others address international relations. One of particular interest to foreign investors may be Article 422 (set out below), which provides that Ecuador will not enter into international agreements under which Ecuador would have to cede jurisdiction to international arbitral tribunals in contractual or commercial matters between the State and individuals or corporations. There is an exception for agreements that resolve disputes between Latin American States and their nationals through regional arbitral tribunals. Article 422 is part of a trend in the region against international arbitration of investment disputes.

It remains to be seen how this provision will impact existing international agreements, including the U.S.-Ecuador Bilateral Investment Treaty. Ecuador has not given any recent indication that it plans to withdraw from the U.S.-Ecuador BIT. However, there have been reports of plans to withdraw from nine other BITs, following notification in December 2007 that Ecuador would no longer consent to submit oil and mining disputes to ICSID. Assuming Article 422 prevents the entry into future agreements containing international arbitration provisions and considering the other constitutional reforms prioritizing local investors and state-owned companies, foreign investment could well be adversely affected.

For now, Ecuador will need to begin following its Transition Regime, as set forth in the new constitution. These provisions outline future steps for the country, including holding elections and establishing a Legislative Commission, which will create new state authorities and approve legislation necessary to implement the constitutional reforms.

***

Article 422 – No se podrá celebrar tratados o instrumentos internacionales en los que el Estado ecuatoriano ceda jurisdicción soberana a instancias de arbitraje internacional, en controversias contractuales o de índole comercial, entre el Estado y personas naturales o jurídicas privadas.

Se exceptúan los tratados e instrumentos internacionales que establezcan la solución de controversias entre Estados y ciudadanos en Latinoamérica por instancias arbitrales regionales o por órganos jurisdiccionales de designación de los países signatarios. No podrán intervenir jueces de los Estados que como tales o sus nacionales sean parte de la controversia.

New Issue: American Review of International Arbitration

The latest issue of the American Review of International Arbitration (Vol. 18, nos. 1-2, 2007) is out. Contents include:

• George A. Bermann, Introduction: Mandatory Rules of Law in International Arbitration
• Hannah L. Buxbaum, Mandatory Rules in Civil Litigation: Status of the Doctrine Post-Globalization
• Bernard Audit, How Do Mandatory Rules of Law Function in International Civil Litigation?
• Alan Scott Rau, The Arbitrator and "Mandatory Rules of Law"
• Laurence Shore, Applying Mandatory Rules of Law in International Commercial Arbitration
• Alexander K.A. Greenawalt, Does International Arbitration Need a Mandatory Rules Method?
• Audley Sheppard, Mandatory Rules in International Commercial Arbitration: An English Law Perspective
• Catherine Kessedjian, Mandatory Rules of Law in International Arbitration: What Are Mandatory Rules?
• Hans Smit, Mandatory Law in Arbitration
• Andrea K. Bjorklund, Mandatory Rules of Law and Investment Arbitration
• Donald Francis Donovan, The Relevance (or Lack Thereof) of the Notion of “Mandatory Rules of Law” to Investment Treaty Arbitration
• Loukas Mistelis, Mandatory Rules in International Arbitration: Too Much Too Early or Too Little Too Late? Concluding Remarks

Workshop: Abebe

Daniel Abebe (Univ. of Chicago - Law) will give a talk today at the Georgetown University Law Center International Legal Theory Colloquium on "A Nation Divided: Eastern China, Western China, and the Problem of Global Warming."

Annual Report of the International Law Commission

The Report of the International Law Commission on its sixtieth session (A/63/10) is now available.

New Issue: European Journal of International Law

The latest issue of the European Journal of International Law (Vol. 19, no. 4, September 2008) is out. Contents include:

• Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights
• Ryan Goodman & Derek Jinks, Incomplete Internalization and Compliance with Human Rights Law
• Stephen Gardbaum, Human Rights as International Constitutional Rights
• Ernst-Ulrich Petersmann, Human Rights, International Economic Law and 'Constitutional Justice'
• Thomas Schultz, Carving up the Internet: Jurisdiction, Legal Orders, and the Private/Public International Law Interface
• Ivana Radacic, Gender Equality Jurisprudence of the European Court of Human Rights