- H.E. Goemans, Which Way Out?: The Manner and Consequences of Losing Office
- Charles Cohen & Eric D. Werker, The Political Economy of "Natural'' Disasters
- Jonathan Renshon, Stability and Change in Belief Systems: The Operational Code of George W. Bush
- Kristopher W. Ramsay, Settling It on the Field: Battlefield Events and War Termination
- Andrew J. Enterline & J. Michael Greig, Perfect Storms?: Political Instability in Imposed Polities and the Futures of Iraq and Afghanistan
- Susan Hannah Allen, The Domestic Political Costs of Economic Sanctions
- Topi Miettinen & Sigrid Suetens, Communication and Guilt in a Prisoner's Dilemma
- Hironori Otsubo & Amnon Rapoport, Dynamic Volunteer's Dilemmas over a Finite Horizon: An Experimental Study
Saturday, November 8, 2008
Friday, November 7, 2008
The first annual International Junior Faculty Forum was held at Stanford Law School on October 17 and 18th, 2008. Organized by Professors William P. Alford and Lawrence M. Friedman, it was sponsored jointly by the Harvard and Stanford Law Schools. Ten papers were selected for presentation, out of a large number of applicants. A panel of twenty distinguished senior scholars from the United States and several other nations was involved in the final selection process. At the Forum itself, each of the selected papers had two commentators, drawn from the panel of international senior scholars. The papers represented a wide range of subjects and disciplines, and, together with the senior scholars, represented more than a dozen different countries.
The stated purpose of the Forum was to stimulate the international exchange of ideas and research among members of the legal academy, to encourage and further the work of younger scholars in the international community, and to surmount barriers between scholars of different traditions and cultures, in the interest of the development of legal scholarship on a transnational basis. In this regard, the consensus of the participants was that the Forum was successful, that it made an excellent start.
The sponsoring schools, Harvard and Stanford law schools, now announce plans for the second International Junior Faculty Forum. Harvard will be the host school in 2009. The dates fixed for the Forum are November 6-8, 2009, at the Harvard Law School, Cambridge, Massachusetts.
Junior scholars whose home institution is outside the United States and who have held an academic position for less than seven years, as of 2009, or whose last degree was earned less than ten years earlier than 2009 and are not U.S. citizens, are invited to apply for the 2009 session. Students currently enrolled in a degree program in a U.S. law school are ineligible. The first step in applying is to submit an abstract of no more than five pages that lays out the major argument of the paper that he/she would submit, states what method the scholar will pursue to advance that argument, and indicates the paper’s potential contribution to scholarship. The abstract must be in English and must be submitted by January 15, 2009 electronically to both Juliet Bowler (firstname.lastname@example.org) and Mary Tye (email@example.com) with a subject line of International Junior Faculty Forum. Additionally, the abstract must contain the author’s name, home institution and paper title.
On the basis of these abstracts, the sponsoring schools will invite the electronic submission of full papers by May 25, 2009. The paper may be on any legally relevant subject, and may utilize any legally relevant approach, quantitative or qualitative, sociological, anthropological, historical, or economic, on the role and function of law and legal systems in the modern world, or in the past. The papers will be reviewed by an international committee of senior legal scholars, representing many different countries and many different styles and approaches. Approximately ten of the papers will be selected for presentation at the conference. As before, each paper will have two commentators, drawn from the international committee of scholars.
The sponsoring schools will cover expenses of travel, including airfare, lodging, and food, for each participant. Questions should be directed to Juliet Bowler (firstname.lastname@example.org).
Mégret: Non-Lethal Weapons and the Possibility of Radical New Horizons for the Laws of War: Why Kill, Wound and Hurt (Combatants) at All?
It is generally considered unquestionable that the waging of war must involve at the very least the possibility of killing, wounding, and hurting combatants under certain conditions. This article attempts to explore the continued validity of that assumption in light of the emergence of so-called non-lethal weapons. Drawing on the idea of 'necessity' in international humanitarian law, it begins by highlighting the essential contingentness of a concept of war based on lethality. Adopting constructivist insights to the study of war can allow one to reconceptualize war as a highly socially constructed and regulated activity that defines war as much as it is defined by it. From a theoretical point of view, the only legitimate goal of war, under a properly understood concept of necessity, should be 'incapacitation' rather than the 'destruction' of enemy forces. The article explores what it is that has made 'destruction' necessary in war historically and what might make a more systematic use of non-lethal weapons even between combatants a possibility. It argues that a mixture of technological, military, and political dilemmas have been obstacles to the ability to think of war as a 'meaningful' social activity if it does not involve at least the possibility of killing combatants, but that all these factors are susceptible to change. Furthermore, it argues that whether use of non-lethal technology should be made compulsory is ultimately a normative question, and that there are strong arguments that both the ethics of war and international humanitarian law are ever more intolerant of death, be it of combatants. Ultimately, wars that rely much more on non-lethal technology would be very different from war as we know it. International humanitarian law would have a key role in bringing about such a change.
Jide Nzelibe (Northwestern Univ. - Law) will give a talk today at the University of Virginia School of Law Faculty Workshop on "Courting Genocide: The Unintended Effect of Humanitarian Interventions."
Thursday, November 6, 2008
UPDATE: The results of the fourth and final ballot were: Abdulqawi Ahmed Yusuf (Somalia) with 116 votes; Miriam Defensor-Santiago (Philippines) with 52 votes; and Maurice Kamto (Cameroon) with 21 votes. The fourth ballot was delayed as a result of a debate on voting procedure (see the UN meeting report here).
La compétence universelle se définit comme la compétence exercée par un Etat qui poursuit les auteurs de certains crimes, quel que soit le lieu où le crime a été commis, et sans égard à la nationalité des auteurs ou des victimes.
Peu d'Etats exercent effectivement cette compétence, même si de nombreuses législations nationales la prévoient. C'est pourquoi la Belgique, qui a adopté en 1993 une loi visant la répression des infractions graves aux Conventions de Genève du 12 août 1949 et aux Protocoles additionnels I et II du 8 juin 1977, plus communément appelée "loi de compétence universelle" et qui l'a mise en oeuvre, a fait office de pionnière. Cette loi a été modifiée à deux reprises, avant d'être abrogée le 5 août 2003. La compétence universelle subsiste toutefois en droit belge. Des dispositions ont été incorporées au Code pénal et au Code de procédure pénale en ce sens. Mais ces dispositions, qui reprennent en partie celles de l'ancienne loi, en restreignent substantiellement la portée.
Le présent dossier documentaire vise à alimenter le débat auquel l'adoption et la mise en oeuvre de cette loi ont donné lieu, en permettant l'accès à un certain nombre de documents de base relatifs à la législation en cause et à ses mises en application devant les tribunaux. Une approche de droit comparé est également proposée, avec des pages consacrées aux développements intervenus dans ce domaine dans deux autres Etats: l’Espagne et la France.
Although the human rights and access to knowledge movements share many of the same goals, their legal and regulatory agendas concerning Internet regulation have historically had little in common. While state censorship online has been a central concern for human rights advocates, this issue has largely not been a focus of the access to knowledge movement. Likewise, human rights advocates have failed to examine the cumulative effect of expanding copyright protections on education and culture, an issue of critical importance for access to knowledge. These disparate agendas reflect fundamentally different views about the nature of the harms associated with state regulation of online content - and thus the solutions that might be implemented to address these harms. Overcoming this divide is critical to ensuring the movements can draw on their respective strengths to address the pressing issues we face at the intersection of access to knowledge and human rights.
This article bridges the "human rights/access to knowledge divide" in two ways. First, it explores how the origin of each movement has led to such different conceptions of the harms associated with regulatory authority in the online context. The article maintains that this divide reflects a deeper unresolved debate about the proper division of authority between state and international institutions and that lack of agreement on this issue has inhibited coherent regulation of the Internet. Second, building on recent literature concerning the design of international institutions, the article develops a model of "flexible harmonization" - employing imprecise but binding international norms - that responds to the regulatory concerns of both movements. The article uses this model to evaluate two proposed frameworks for Internet governance and examines the conditions under which a model of flexible harmonization can be employed in other contexts.
- Daniel D. Ntanda Nsereko, The Role of the International Criminal Tribunals in the Promotion of Peace and Justice: The Case of the International Criminal Court
- Ralph Henham, Punishment and the Role of the Prosecutor in International Criminal Trials
- Symposium: Legal Aspects of the Lubanga Case
- William A. Schabas & Carsten Stahn, Introductory Note
- Rod Rastan, What Is a ‘Case’ for the Purpose of the Rome Statute
- Sabine Swoboda, The ICC Disclosure Regime – A Defence Perspective
- Mohamed Elewa Badar, The Mental Element in The Rome Statute of the International Criminal Court: A Commentary from a Comparative Criminal Law Perspective
- Roger S. Clark, Drafting a General Part to a Penal Code: Some Thoughts Inspired by the Negotiations on the Rome Statute of the International Criminal Court and by the Court’s First Substantive Law Discussion in the Lubanga Dyilo Confirmation Proceedings
Let me begin by thanking David Caron and the other organizers of this conference. I am very pleased to speak to you today about the law of the sea. Now, the first thing to know about this topic is that it is the occasion of endless wordplay. The mere mention of the Law of the Sea Convention, and the puns set sail. I didn’t know the topic well when I joined the Administration in 2001, but it’s one in which I have since been immersed – at times, submerged. And after plumbing the depths of the issue – and diving into the details – I have concluded (now that I’ve come up for air) that joining the Convention is the right thing to do.
Seriously, though, I would first like to share with you the details of the Administration’s concerted efforts to achieve Senate approval of the Law of the Sea Convention. I’ll then discuss some of the law of the sea issues that engage the Legal Adviser’s Office. And I’ll end with some thoughts on the currently “hot” topic of the melting ice in the Arctic region.
When I was Legal Adviser at the National Security Council, I led the Administration’s review of all of the unratified treaties that were still before the Senate when the Bush Administration took office. The prior Administration had classified the Law of the Sea Convention as a category one treaty priority, and one major issue we faced was whether to maintain that designation. Given the history of the Convention, including President Reagan’s 1982 refusal to sign because of his concerns about Part XI, we wanted to ensure that the Convention and the 1994 Implementing Agreement, which modified Part XI, were subjected to close scrutiny. In the fall of 2003, after a careful review process involving a wide range of agencies, the Administration decided to strongly support U.S. accession.
We concluded that there were several important benefits to joining the Convention:
First, the Convention strongly advances U.S. national security interests because it guarantees our military and commercial vessels – both ships and aircraft – navigational rights and freedoms throughout the world’s oceans, including the right of innocent passage through and over foreign territorial seas and international straits. We concluded that these protections are particularly important at a time when the U.S. military is conducting military operations in Iraq and Afghanistan and new initiatives like the Proliferation Security Initiative but faces increasing challenges to its activities around the globe. The navigational rights guaranteed by the Convention led all branches of our military to strongly support accession.
Second, the Convention advances U.S. economic interests. It would codify U.S. sovereign rights over all the resources in the ocean, and on and under the ocean floor, in a 200-nautical mile Exclusive Economic Zone off our coastline. The United States has one of the longest coastlines and the largest Exclusive Economic Zone of all the countries in the world and stands to gain greatly from these provisions. The Convention also codifies sovereign rights over resources on and under the ocean floor beyond 200 nautical miles, if the area meets certain geological criteria set out in the Convention. The Convention establishes an institution -- the Commission on the Limits of the Continental Shelf – that offers a coastal State the opportunity to maximize international recognition and legal certainty with respect to the continental shelf beyond 200 nautical miles offshore. This is an especially valuable feature of the Convention right now, as it would maximize legal certainty regarding U.S. rights to energy resources in vast offshore areas, including in areas that are likely to extend at least 600 miles north of Alaska.
The third principal benefit of the Convention is that it sets forth a comprehensive legal framework and establishes basic obligations for protecting the marine environment from all sources of pollution. This framework allocates regulatory and enforcement authority so as to balance a coastal State’s interests in protecting the marine environment and its natural resources with the rights and freedoms of navigation of all States.
Apart from the benefits of these substantive provisions, joining the Convention would give the United States a “seat at the table” in the interpretation and development of the law of the sea. As a leading maritime power and a country with one of the longest coastlines in the world, the United States has an enormous stake in that project, and we need to ensure a level of influence commensurate with our interests. Although the Convention’s first several years were fairly quiet on this score, its provisions are now being actively applied and developed. The Continental Shelf Commission and the International Seabed Authority, for example, are up and running, and we – the country with perhaps the most to gain, and lose, on law of the sea issues – should not be sitting on the sidelines. Our status as a non-Party puts us in a far weaker position to advance U.S. interests.
In addition to the benefits of joining, the main stumbling block to accession has been removed. President Reagan had refused to sign the Convention because of concerns regarding its deep seabed mining chapter, including provisions mandating technology transfer and insufficient U.S. influence in decision-making. As a result of international political and economic changes in the late 1980s and early 1990s, other countries recognized that the collectivist approach to deep seabed mining required modifications. The Implementing Agreement concluded in 1994 contains legally binding changes to the Convention’s deep seabed mining chapter. The Administration concluded that the 1994 Agreement overcomes each one of the U.S. objections to the Convention and meets President Reagan’s goal of guaranteed access by U.S. industry to deep seabed minerals on the basis of reasonable terms and conditions.
For these reasons, the Administration affirmed in 2003 that it considered U.S. accession to the Law of the Sea Convention a top priority and urged the Senate to approve it. The Senate Foreign Relations Committee unanimously approved the treaty in February 2004, but the treaty unfortunately got caught up in election-year politics and was not taken up by the full Senate that year.
When I became Legal Adviser at the State Department in 2005, I made it a priority to try to win Senate approval of the Convention. Given the obvious benefits of accession, and the Administration’s full backing of the Convention, I have to say I was optimistic. National Security Adviser Stephen Hadley wrote to Senator Biden in February 2007 on the President’s behalf to urge early approval of the Convention, emphasizing that it “protects and advances the national security, economic, and environmental interests of the United States.” And President Bush himself issued a statement in May 2007 urging the Senate to act favorably on U.S. accession during the first session of the 110th Congress.
Moreover, the Convention had the backing of the kind of coalition that normally augurs success in Washington. There was certainly no doubt about the military’s support. A so-called “24-star” letter from the Joint Chiefs of Staff called on the Senate to approve the Convention. In addition, the Convention had the support of many high-level officials in the civilian agencies. Secretary of Homeland Security Michael Chertoff, Secretary of the Interior Dirk Kempthorne, and Secretary of Commerce Carlos Gutierrez all wrote strong letters urging the Senate to act. And, as a demonstration of high-level Administration commitment, both Deputy Secretary of State John Negroponte and Deputy Secretary of Defense Gordon England testified in support of the Convention at a Senate hearing in September 2007. Moreover, several Reagan-era officials, including former Secretary of State George Shultz and former Ambassador Ken Adelman, argued publicly that President Reagan’s problems with the Convention had been fixed and that it was time for the United States to join. Finally, the Convention was also strongly supported by every major ocean industry, including shipping, fishing, oil and natural gas, drilling contractors, ship builders, and telecommunications companies, and representatives of the oil and gas, shipping, and telecommunications industries testified in favor of the Convention before the Senate Foreign Relations Committee.
At the same time, economic arguments for joining the Convention grew even stronger. Public attention was increasingly focused on the melting of Arctic ice and its implications for oil and gas development. The planting of a flag at the North Pole by a Russian submarine in August 2007, while carrying no legal significance, highlighted the Arctic as a source of additional wealth for the countries bordering the Arctic Ocean. Russia and the other Arctic coastal states -- Canada, Denmark, and Norway – all are parties to the Convention and already have submitted, or are preparing to submit, proposed outer limits for their continental shelves to the Continental Shelf Commission. These submissions will enable these countries to maximize international recognition over their extended continental shelves in the Arctic, including sovereign rights over oil and gas reserves. Because of the similar reserves on the U.S. continental shelf off of Alaska, both Senators Stevens and Murkowski actively supported the Convention, as did Governor Sarah Palin in a September 2007 letter to those Senators. She focused specifically on the continental shelf rights that the other Arctic States were busy securing while the United States sat on the sidelines.
In October 2007, the Senate Foreign Relations Committee voted the Convention out of Committee by a 17-4 vote. The Committee report recommended that the full Senate give its advice and consent to the treaty and set forth a set of declarations, understandings, and conditions that had been carefully worked out between the Committee and the Executive Branch.
Once again, however, the full Senate did not get the opportunity to vote on the treaty. Opponents were ultimately successful in keeping it from reaching the Senate floor by making it clear that a debate on U.S. accession would trigger every possible procedural maneuver and thereby take up maximum floor time. The Senate Majority Leader decided not to send the treaty forward under those circumstances, and the treaty has languished on the Senate calendar for the last year.
In their efforts to block accession, opponents of the Convention have relied on arguments and assertions that were – to be blunt – inaccurate, outdated, or incomplete. As many of you know, opponents invariably refer to the Convention using the acronym “LOST” – Law of the Sea Treaty – in contrast to proponents’ preference to highlight its many benefits by referring to it as “LOTS” – Law of the Sea. I want to address the criticisms I hear most frequently from those who believe the Convention is “LOST.”
The more outlandish arguments against the Convention include allegations that the Convention authorizes a “UN Navy” or “UN taxes,” that under the Convention the United Nations would control the world’s oceans, that joining would hinder U.S. intelligence activities or forfeit U.S. “sovereignty.” None of these claims are accurate, yet critics have somehow managed to present them as plausible. For example, one of the intelligence-related assertions is that the Convention prohibits submarines from transiting submerged through the territorial sea of a coastal State. It is true that a submarine must surface in order to enjoy the benefits of the right of innocent passage through the territorial sea. What is not true is that the Convention prohibits submerged transit through the territorial sea. Submarines are free to transit submerged; they simply aren’t entitled to the benefits of the right of innocent passage if they do. These rules have prevailed for decades, including under a 1958 treaty to which the United States is already a party –a fact that was either unknown to or unacknowledged by the Convention’s critics.
The charge that the Convention robs the U.S. of “sovereignty” is particularly perplexing because far from ceding U.S. sovereignty, the Convention in fact reflects an enormous transfer of sovereignty and resources to the United States. The Convention codifies the sovereignty and sovereign rights of the United States over extensive maritime territory and natural resources off its coasts. Our extended continental shelf is estimated to be the size of two Californias.
Opponents of the Convention also rely on arguments about deep seabed mining that are simply outdated. For example, they claim that the Convention mandates transfer of sensitive marine technology to less-developed countries. This argument, and others like it, used to be accurate, and were the reason why President Reagan decided that the United States would not join the original Convention. But the 1994 Implementing Agreement fixed all these flaws, and the Convention now eliminates mandatory technology transfer, guarantees appropriate U.S. influence in Law of the Sea decision-making bodies, and generally facilitates access to mining on reasonable terms. Supporters and opponents can all agree that the original Convention was flawed, but that is not the Convention that the Senate is being asked to approve. Indeed, the Convention, taken together with the 1994 Agreement, represent a success of U.S. diplomacy.
Opponents also contend that accession is basically unnecessary for the United States to enjoy the benefits of the Convention. On this view, we get the benefit of the rest of the world treating the Convention’s provisions as customary international law without having to sign up ourselves. And, the argument goes, if there are any deficiencies in our legal rights, the U.S. Navy can make it up through force or the threat of force. So why join the Convention and subject ourselves to, for example, third-party dispute settlement?
This argument misses some key points:
First, asserting customary international law does not secure all the benefits of the Convention for us. For example, as a non-party, we do not have access to the Continental Shelf Commission and cannot nominate nationals to sit on it.
Second, relying on customary law does not guarantee that even the benefits we do currently enjoy are secure over the long term. Customary law is not the most solid basis upon which to protect and assert U.S. national security and economic rights. It is not universally accepted and changes over time based on State practice. We therefore cannot assume that customary law will always continue to mirror the Convention, and we need to lock in the Convention’s rights as a matter of treaty law. As Admiral Mullen testified when he was Vice Chief of Naval Operations, “[it is too risky to continue relying upon unwritten customary international law as the primary legal basis to support U.S. military operations.” One irony of this debate is that some of the opponents of the Convention are the same people who most question the viability of customary international law.
Third, to obtain financing and insurance and avoid litigation risk, U.S. companies want the legal certainty that would be secured through the Convention’s procedures in order to engage in oil, gas, and mineral extraction on our extended continental shelf. So, while it may be true that the Navy will continue to exercise navigational rights with or without the Convention, U.S. companies are reluctant to begin costly exploration and extraction activities without the benefit of the Convention.
Fourth, military force is too blunt an instrument to protect our asserted customary international law rights, especially our economic rights. It is simply unrealistic and potentially dangerous to rely solely on the Navy to ultimately secure the benefits of the Convention. The Navy itself has made clear that treaty-based rights are one of the tools it needs in its arsenal.
A final focus of opponents’ criticisms is the Convention’s dispute settlement provisions. While reasonable people can differ over whether third-party dispute settlement is, on balance, a “pro” or a “con,” I believe that these particular provisions are useful, well-tailored, and in no event a reason to jettison the Convention. The United States affirmatively sought dispute settlement procedures in the Convention to encourage compliance and to promote the resolution of disputes by peaceful means. We sought and achieved procedures that are flexible in terms of forum. For example, the Convention allows a Party to choose arbitral tribunals and does not require any disputes to go to the International Court of Justice. Its procedures are also flexible, allowing a Party to choose to exclude certain types of disputes, such as those concerning military activities. In this regard, some have questioned whether it is up to the United States – or a tribunal – to determine what constitutes a U.S. “military activity” under the Convention. We propose to include a declaration in the Senate’s resolution of advice and consent making clear that each Party has the exclusive right to determine what constitutes its “military activity.” And I can assure you that there is no legal scenario under which we would be bound by a tribunal decision at odds with a U.S. determination of military activities.
Now, am I saying that I can guarantee that the United States would win every case that it brought against another country or vice versa? Of course not. But this is not a case where there are two perfect choices – joining or not joining. Submitting to dispute settlement involves some risk, to be sure – but not joining the Convention presents a far greater risk: that the United States will be left without solid legal protections for its vital national security, economic, and environmental interests.
In short, I believe opponents’ concerns about dispute settlement and other aspects of the Convention are either unfounded or overblown. Moreover, they have not offered a compelling alternative to joining the Convention when it comes to securing U.S. sovereign rights with respect to the continental shelf beyond 200 nautical miles. I frankly find it somewhat remarkable that, with the recent energy crisis and renewed focus on U.S. energy security, more Americans are not actively demanding that the United States join the Convention and catch up with the other Arctic nations in exploring and securing its extended continental shelf. Whether or not we decide, as a domestic matter, to allow exploitation of continental shelf oil and gas resources, it seems hard to imagine why we would not want to maximize our potential ability to do so.
As the nation with the world’s largest navy, an extensive coastline and a continental shelf with enormous oil and gas reserves, and substantial commercial shipping interests, the United States certainly has much more to gain than lose from joining the Law of the Sea Convention. In my view, it is most unfortunate that a small but vocal minority – armed with a series of flawed arguments – has imposed upon the United States a delay that is contrary to our interests. Nevertheless, I am convinced this will change and am confident that the United States Senate will approve the Convention in due course.
In the meantime, the United States will continue to abide by the Convention and work within its framework. Even as we remain outside the Convention, the Legal Adviser’s Office confronts law of the sea issues on a daily basis. For example, we work at the International Maritime Organization and in regional fora to protect the marine environment by elaborating rules for reducing vessel source pollution, ocean dumping, and other sources of marine pollution. We recently achieved U.S. ratification of a treaty – “MARPOL Annex VI” – aimed at limiting air pollution from ships and a protocol limiting land-based sources of marine pollution in the Caribbean Region. A global treaty on ocean dumping – the “London Protocol” -- awaits action by the full Senate. At home, we coordinate with the Department of Justice to ensure that prosecutions involving foreign flag vessels are consistent with the marine pollution chapter of the Convention, and we scrutinize legislative proposals from both the Executive Branch and the Congress to ensure that U.S. marine pollution jurisdiction is applied and enforced in accordance with law of the sea rules.
We also negotiate maritime boundary treaties with our neighbors in line with the provisions of the Convention. Most people think the United States has only two neighbors – Canada and Mexico – but by virtue of our island possessions, we actually have over thirty instances in which U.S. maritime claims overlap with those of another country. Less than half of them have been resolved. Some involve disagreements about how much effect to give to islands in determining a maritime boundary. In the case of the Beaufort Sea, Canada argues that the existing treaty establishing the land boundary between Alaska and Canada also determines the maritime boundary. Our office is also assisting a State Department-led Task Force to determine the outer limits of the U.S. continental shelf beyond 200 nautical miles. The U.S. Coast Guard icebreaker Healy has recently conducted several cruises in the Arctic Ocean, including one that mapped areas of the Chukchi Borderland where the U.S. shelf may extend more than 600 miles from shore.
U.S. and international efforts to combat terrorism and proliferation have also generated law-of-the-sea-related issues. Consistent with the Convention, we fashion shipboarding agreements to promote the maritime interdiction aspects of the Proliferation Security Initiative. And we bring law of the sea equities into the elaboration of treaties on suppression of criminal acts at sea. In fact, the U.S. Senate has just given its advice and consent to ratification of two protocols that supplement the convention that addresses suppression of unlawful acts at sea – the 2005 so-called “SUA Protocol” and the 2005 “Fixed Platforms” Protocol.
Law of the sea issues have also featured prominently in UN Security Council discussions and resolutions regarding piracy off the coast of Somalia. For example, a key element of UNSCR 1816 is to treat Somali territorial waters as the high seas for interdiction purposes.
Fisheries issues also absorb our legal attention, as depleted stocks have become a major economic and environmental issue. Countries are seeking to create regional fisheries management organizations in more and more areas of the world and are looking to strengthen the means for cracking down on illegal, unregulated, and unreported fishing.
Over the past year or so, some of the most interesting law of the sea issues for us have come from the Arctic, where climate change is creating the prospect for increased shipping, oil and gas activity, tourism, and fishing. As a result, the law of the sea has become more relevant than ever. I want to conclude with a few observations and some ideas about ways forward regarding the melting Arctic.
My first observation is that while some have expressed concern that the Arctic is a “lawless” region, this could not be further from the truth. For one, the law of the sea, as reflected in the Convention, provides an extensive legal framework for a host of issues relevant to the Arctic. It sets forth navigational rights and freedoms for commercial and military vessels and aircraft in various maritime areas. It addresses the sovereignty of the five Arctic coastal States – the U.S., Russia, Canada, Denmark, and Norway – by setting forth the limits of the territorial sea and the applicable rules. It addresses sovereign resource rights by setting forth the limits of the exclusive economic zone and the continental shelf and rules governing those areas. It provides the geological criteria relevant to establishing the outer limits of the continental shelf beyond 200 nautical miles – a topic of great interest these days as the Arctic coastal States seek to extend their respective shelves to the limits permissible under international law. For Parties to the Convention – that is, the four other coastal States – it sets forth a procedure for securing international recognition of those outer limits. International law also sets forth rules for resolving cases where the maritime claims of coastal nations overlap. And finally, the law of the sea provides rules regarding marine scientific research in the Arctic and sets out the respective rights and responsibilities among coastal States, flag States, and port States regarding protection of the marine environment.
But the law of the sea is not the only law governing the Arctic. Various air-related agreements indirectly protect the Arctic, such as the Montreal Protocol on the Ozone Layer and the Framework Convention on Climate Change. There is also so-called “soft law” applicable to the Arctic – for example, non-binding rules such as the International Maritime Organization’s 2002 guidelines for ships operating in ice-covered waters. Further, there is an intergovernmental forum – the Arctic Council – which comprises the eight countries with land territory above the Arctic Circle. The Council, which puts great weight on environmental issues, has issued Guidelines on Arctic offshore oil/gas activities.
My second observation is that we should not be taken in by hyperbole in the press about a “race” to the Arctic. Yes, there are efforts to secure legal certainty in places where previously such certainty was not especially important. But this is not the Wild West. Last May, officials from Canada, Denmark, Norway, Russia, and the United States gathered in Greenland to put to rest the concern that there is a rush to stake out and exploit Arctic natural resources. In the so-called “Ilulissat Declaration,” these countries made clear that there are already robust international legal rules applicable to the Arctic, and that they are committed to observing these rules.
A third observation is that, while there is likely to be a need to expand international cooperation in the Arctic in certain areas, there is no need for a comprehensive Arctic treaty. As the Ministers stated in the Ilulissat Declaration: “We…see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean.” Calls for a new Arctic treaty along the lines of the Antarctic Treaty are particularly misguided, as the legal, geographic, and other aspects of these two regions are vastly different. Among other things, unlike Antarctica, where most of the world does not recognize the sovereignty claimed by seven countries and a treaty served to suspend the claims issue so as to permit scientific research, the land territory in the Arctic is almost entirely undisputed. Also unlike Antarctica, most of the Arctic is ocean and widely recognized as subject to the law of the sea.
My final observation relates again to the Ilulissat Declaration. Some have wondered, with concern, whether the Declaration is intended to reflect the emergence of a new grouping of the five countries bordering the Arctic Ocean. Not at all. These countries are simply geographically located in positions where they have particular rights and obligations under the law of the sea that are relevant to the Arctic Ocean; they have an obvious interest in maintaining a dialogue with one another on these issues. Moreover, we do not view the Ilulissat Declaration or the Greenland Ministerial as excluding the legitimate interests of the other members of the Arctic Council – Finland, Iceland, and Sweden – or other States with an interest in Arctic matters.
Now that I have said what there is not – no lawless region, no “race,” no need for a new treaty, and no new country grouping – I would like to discuss where there may be room for improvement. First, as maritime traffic and tourism in the Arctic increases, there will likely be a need for strengthened cooperation in search and rescue. Ship-borne tourism to the Arctic has in fact already grown. Under the Convention, each coastal State is required to “promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighboring States for this purpose.” The U.S. Coast Guard is working to enhance its own search and rescue capabilities in the Arctic, and we are considering ways to enhance cooperative arrangements with our Arctic neighbors to ensure, among other things, rational allocation of resources and avoidance of gaps in coverage.
Second, as the five Ministers noted in the Ilulissat Declaration, there are opportunities for greater scientific cooperation on Arctic issues, both among the Arctic coastal states and with other interested countries. U.S. and Canadian scientists worked together this past summer to gather seismic and bathymetric data related to establishment of the outer limits of the continental shelf in the Arctic – notwithstanding the unresolved maritime boundary with Canada in the Beaufort Sea.
A third area is cooperation on the environment. The Ministers in Ilulissat noted the “stewardship role” their nations have in protecting the Arctic Ocean’s unique ecosystem. In the Arctic Council, these and other countries are assessing the state of biological diversity, addressing the regional impacts of non-carbon dioxide climate forcing agents, and enhancing the existing “Arctic Off-Shore Oil and Gas Guidelines” for adoption by Arctic ministers in April 2009. This updating of the oil and gas Guidelines, which is largely based on the Arctic Council’s 2008 “Assessment of Arctic Oil and Gas Activities,” will reflect technological advances since the last update in 2002, and include more detailed provisions on environmental impact assessments. Another environment-related issue that should involve the broader international community, through the International Maritime Organization, is to update the IMO’s Guidelines for Ships Operating in Ice-Covered Waters, also known as the “Polar Code.” The IMO is currently looking at ways the Code could be strengthened, including through changes in vessel design and increased safety and life-saving equipment.
Finally, I view it as a very positive development that, both domestically and internationally, experts are considering the legal issues associated with the warming of the Arctic. To the extent enhancements are needed in one or more areas regarding the safety, security, or environmental protection of the Arctic Ocean, these can be agreed upon and put in place before they become necessary.
In closing, I hope I have given you a better sense of why this Administration supports, and what we have done to obtain, Senate approval of the Law of the Sea Convention, as well as our views on the issues raised by melting ice in the Arctic. Especially in view of the changes in the Arctic, I hope too much more time does not elapse before the United States joins the Convention and is able to place its rights on the firmest legal footing and take its seat at the table with the other parties to the Convention as they make decisions affecting the world’s oceans.
The U.S. Supreme Court's 2008 decision in Medellin v. Texas raised many fascinating structural constitutional issues about the relationship between federal courts and international courts and the problem of delegations to international institutions. Yet, Chief Justice John G. Roberts's opinion for the Court managed to avoid direct discussion of any of this issue. Instead, it focused almost exclusively on the doctrine of non-self-execution. The Court's determination that the relevant treaties were non-self-executing lies at the heart of its decision. The focus on non-self-execution, however, does not mean that the complicated structural problems raised by Medellin do not exist. Rather, in this short essay, I argue that the problem of international delegations is crucial to understanding and justifying Chief Justice Roberts's application of the non-self-execution doctrine in Medellin.
Symposium: Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context
- Yuval Shany, Introduction
- Martti Koskenniemi, Occupied Zone - A Zone of Reasonableness?
- Amichai Cohen, Rules and Standards in the Application of International Humanitarian Law
- Yuval Shany, Binary Law Meets Complex Reality: The Occupation of Gaza Debate
- Grant Harris, Human Rights, Israel, and the Political Realities of Occupation
- Kenneth Watkin, Maintaining Law and Order during Occupation: Breaking the Normative Chains
- Yaël Ronen, Illegal Occupation and Its Consequences
- Rotem Giladi, The Jus Ad Bellum/Jus in Bello Distinction and the Law of Occupation
- Neomi Gal-Or, Suspending Sovereignty: An Alternative to Occupation in the 21st Century?
- Tristan Ferraro, Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities
Le droit de l’arbitrage, plus encore que le droit international privé, se prête à une réflexion de philosophie du droit. Les notions, essentiellement philosophiques, de volonté et de liberté sont au coeur de la matière. La liberté des parties de préférer aux juridictions étatiques une forme privée de règlement des différends, de choisir leur juge, de forger la procédure qui leur paraît la plus appropriée, de déterminer les règles de droit applicables au différend, quitte à ce qu’il s’agisse de normes autres que celles d’un système juridique donné, la liberté des arbitres de se prononcer sur leur propre compétence, de fixer le déroulement de la procédure et, dans le silence des parties, de choisir les normes applicables au fond du litige, soulèvent autant de questions de légitimité.
Le présent ouvrage s’attache à identifier les postulats philosophiques qui sous-tendent la matière, à montrer leur profonde cohérence et les conséquences pratiques qui en découlent dans la résolution des grands contentieux du commerce international.
Ruth Okediji (Univ. of Minnesota - Law) will give a talk today at the Vanderbilt University Law School on "Beyond Fragmentation: WIPO-WTO Relations and the Future of Global IP Norms."
Geoffrey Robertson (formerly, Judge, Special Court for Sierra Leone) will give a lecture today at the Case Western Reserve University School of Law on "The Future of Human Rights."
Beth Simmons (Harvard Univ. - Government) will give a talk today at the University of California, Berkeley School of Law International Law and International Relations Workshop on "International Human Rights: Law, Politics and Accountability."
Wednesday, November 5, 2008
- Robin Churchill, Dispute Settlement Under the UN Convention on the Law of the Sea: Survey for 2007
- Sonja Boelaert-Suominen, The European Community, the European Court of Justice and the Law of the Sea
- Ho-Sam Bang, Is Port State Control an Effective Means to Combat Vessel-Source Pollution? An Empirical Survey of the Practical Exercise by Port States of Their Powers of Control
- Malgosia Fitzmaurice, The Dilemma of Traditional Knowledge: Indigenous Peoples and Traditional Knowledge
- Timo Koivurova, The Draft Nordic Saami Convention: Nations Working Together
- Kamrul Hossain, Hunting by Indigenous Peoples of Charismatic Mega-Fauna: Does Human Rights Approach Challenge the Way Hunting by Indigenous Peoples is Regulated?
The principle of complementarity is the corner stone for the operation of the International Criminal Court (ICC). It organizes the functional relationship between domestic courts and the ICC. This is the first careful study of the historical antecedents of the principle of complementarity, which has become so central to the operation of contemporary international criminal law. The study draws upon the first efforts at international prosecution, after the First World War, and then traces the evolution of the concept through the drafting of the 1937 treaty on terrorism, and the post-Second World War tribunals. It examines in an exhaustive manner the work of the International Law Commission that led to the drafting of the Rome Statute of the International Criminal Court, up to the deposit of the draft statute with the UN General Assembly in 1994. It considers the travaux préparatoires of the Rome Statute itself, in a most thorough manner. It also examines the post-Rome developments, particularly the original interpretations of the relevant provisions of the Statute by both the Office of the Prosecutor and the Pre-Trial Chambers. This is a study that is of intrinsic historical interest, but also one that may help to guide interpreters of the Statute in the years to come.
Karen Knop (Univ. of Toronto - Law) will give a talk today at the Harvard Law School International Law Workshop.
Tuesday, November 4, 2008
van Aaken: Effectuating Public International Law Through Market Mechanisms? (and comment by Zumbansen)
Traditionally, the enforcement of Public International Law (PIL) was a task of states: the addressees and the enforcers of PIL were states. That has changed recently. Whereas the influence of private market actors on the making of PIL has been extensively analyzed, the influence of private market actors on the enforcement has been neglected although the idea of using private interests in order to foster social goals has a long history. This article draws on theoretical insights of a rational-choice approach to PIL in order to analyze the prerequisites of effectuating PIL through private market actor incentives and market mechanisms.And Zumbansen's:
In the autumn of 2008, at a time of global reconsideration of the role of states in the regulation of markets, the paper uses the reflection on past experiences with the laissez faire state, the interventionist state, the welfare state and the enabling state as institutional crystallization points in an ongoing learning process of regulatory innovation as a framework to assess contemporary proposals to delegate public international law (PIL) enforcement to market actors. As such, the paper attempts to carve out possible conceptual and political implications of the current proposals against the background of interventionist and post-interventionist market regulation models. However, the translation of nation-state experiences with market regulation onto the global sphere presents a challenge in light of the particular structural qualities of transnational regulatory regimes. The task - both for a reconstructive narrative and for a delegation theory of PIL regulation through market actors - lies in the production of a better understanding of state-market and public-private distinctions in the transnational arena.
As an empirical matter, there is a little question that international law is being increasingly applied today by national courts around the world in a more consequential manner. Moreover, in the words of one scholar: "references to foreign law and international law are being transformed from the shield that protected the government from judicial review to the sword by which the government's (or governments') case is struck down" (emphasis added). Indeed, examination of recent decisions in the UK and Israel suggests an increasing willingness on the part of some national courts to use international law as a meaningful tool for critical review of government policy and legislation relating to sensitive security-related matters. The present article examines whether, in light of these developments, some national courts should now be conceptualized as de facto international actors fulfilling an international judicial function (drawing inspiration from Georges Scelles's classic work on dedoublement fonctionnelle). In addressing this question, I discuss the potential motivations that underlie the application of international law by national courts and argue that if national judges apply international law out of a sense of legal obligation then their ultimate loyalty to national interests does not contradict their international law-applying role. The final part of the articles discusses some jurisdictional implications that may arise from the increased approximation of the judicial functions of national and international courts. In a nutshell, I argue there that if national courts are increasingly operating like international courts, a more robust legal framework should be considered for coordinating between national and international legal procedures and judicial decisions. When viewed from that perspective, the decision of the majority on the U.S. Supreme Court in Medellin, which extended little deference to the judgment issued by the International Court of Justice on the same matter, appears disappointing.
Monday, November 3, 2008
Raustiala: Does the Constitution Follow the Flag? Territoriality and Exraterritoriality in American Law
This is the preface and opening chapter of a forthcoming book on Oxford University Press about the way that geography shapes legal rules and understandings - and how fundamental changes in American power and in world politics have challenged and sometimes altered the traditionally territorial system of legal jurisdiction. Do the laws of the United States stop at the water's edge? If not, do they operate differently beyond American territory? These questions often arise today with regard to hot-button issues such as the future of Guantanamo. But they have a long and fascinating history, dating back to the American Revolution and encompassing episodes as varied as the military occupation of parts of Mexico, the U.S. District Court for China, American empire after the Spanish-American War, extraterritorial regulation, and postwar Status of Forces Agreements. This book explores changes in territoriality and extraterritoriality through these episodes, covering questions of both constitutional and statutory law, world and domestic politics, and internal and external borders. Two main arguments are advanced. First, instances of extraterritoriality, while varied, share a common ground in their focus on managing and minimizing legal difference, differences that are a direct result of the territorial basis of sovereign rule, which has been the organizing principle of the international system for centuries. Second, American law has long employed what I call intraterritoriality as a way to facilitate the power of the United States. The United States comprises a complicated mix of territory. Within the states constitutional rights apply fully, but throughout much of American history only a limited set of rights have applied in other U.S. territories. Intraterritoriality is in a sense a mirror of extraterritoriality. Extraterritoriality generally serves to mitigate difference, whereas intraterritoriality generally serves to establish difference. Throughout the book I contend that we cannot understand the evolution of extraterritoriality and intraterritoriality in U.S. law without understanding the broader international context. American notions and doctrines of territoriality were themselves drawn from international law. Yet these notions and doctrines evolved over time to reflect American national interests. As the United States grew from a weak state to a global superpower, and as the nature of world politics itself changed, principles of both extraterritoriality and intraterritoriality have been transformed.
- Joseph Straus, How to Break the Deadlock Preventing a Fair and Rational Use of Biodiversity
- Duncan Curley, Interoperability and Other Issues at the IP–Anti-trust Interface: The EU Microsoft Case
- Delphine Marie-Vivien, From Plant Variety Definition to Geographical Indication Protection: A Search for the Link Between Basmati Rice and India/Pakistan
Hari Osofsky (Washington and Lee Univ. - Law) will give a talk today at the Georgetown University Law Center International Legal Theory Colloquium on "Is Climate Change 'International'?: Litigation's Diagonal Regulatory Role."
Sunday, November 2, 2008
The Oxford Handbook of International Relations offers the most authoritative and comprehensive overview to date of the field of International Relations. The Handbook debates the nature of the field itself, critically engages with the major theories, surveys a wide spectrum of methods, addresses the relationship between scholarship and policy making, and examines the field's relation with cognate disciplines. In so doing the Handbook gives readers authoritative and critical introductions to the subject and establish a sense of the field as a dynamic realm of argument and inquiry.
The Handbook has two key and distinctive organizing principles. The first is its ground-breaking approach to the normative component in theorizing about International Relations. Earlier volumes have concentrated almost exclusively on theories as purely empirical or positive theories, with small sub-sections left for 'ethics and International Relations'. But all International Relations theories have both empirical and normative aspects; even methodological choices entail implicit normative commitments. Without this understanding, some of the arguments in International Relations are routinely miscast. The Oxford Handbook of International Relations offers a comprehensive survey of the field that deepens our understanding of how empirical and normative theorizing interact to constitute International Relations as a field of study.
A second organizing principle is the analysis of how different perspectives have developed in relation to one another. Previous overviews of the field have treated contending theories and methods as isolated bodies of thought, or organized them into stylized 'great debates'. But these approaches obscure the dynamic interplay, conversation, and contestation between different perspectives. The Handbook examines this interplay, with chapter authors probing how their theory or approach has been affected by contestation with, and borrowing from, other approaches. In doing so it shows how diversity within International Relations has promoted, or perhaps sometimes stultified, progress in the field.
The Oxford Handbook of International Relations advances a markedly different perspective on the field of International Relations and will be essential for reading for those interested in the advanced study of global politics and international affairs.