Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamentals rights. The European Court of Human Rights is routinely balancing human rights against each other and against conflicting public interests and has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights. The paper examines the debate on balancing in the context of American constitutional law and the Convention, and discusses theories which claim that some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes and suggests that courts should instead focus on the real moral issues underlying such disputes.
Saturday, November 29, 2008
Friday, November 28, 2008
The past two decades have seen a rising wave of investor-State arbitrations, which pose important questions of international law. This volume addresses one of the least understood and most unpredictable areas in that field - the assessment of damages. The result of a two-year research project carried out at the British Institute of International and Comparative Law, this book is the first to examine the subject in a systematic, comprehensive and detailed manner.
The authors provide a much-needed balanced assessment of the complicated and controversial issues arising in relation to compensation awards, putting special emphasis on the interpretation and application of international rules on damages by arbitral tribunals. In addition to careful analysis of the most recent investment treaty case law, other relevant practice, both international and national, is reviewed. Thorough, well-organised and supplemented by analytical annexes, the book will be a valuable reference tool for legal professionals and a practical aide for constructing and resolving damages claims in investment arbitration.
Thursday, November 27, 2008
The article assesses efforts in U.S. court, principally under the Alien Tort Statute (ATS), to hold foreign investors liable for human rights violations committed by the governments of countries in which they invest. It is primarily focused on suits targeting non-U.S. entities. Examples currently pending include claims against multiple investors, such as Barclays Bank and Izusu Motors, for investments in apartheid-era South Africa, and claims against Talisman Energy, a Canadian corporation, for operations in Sudan. These suits, and others like them, typically do not rest on claims that the investors themselves committed human rights violations, but rather that investors can be reached through some variety of third-party liability such as aiding and abetting.
The article argues that these suits, though pitched as efforts to find remedies for international law violations, in fact raise substantial tensions with international law. First, as a doctrinal matter, to the extent they target non-U.S. entities, they raise serious questions about the U.S.'s prescriptive jurisdiction over the alleged conduct. They do not fit easily within any of the usual categories of extraterritorial prescriptive jurisdiction, and claims to universal jurisdiction over the alleged conduct, especially those depending upon theories of third-party liability, seem difficult to establish. Second, as a conceptual matter, these suits appear to misunderstand the source of customary international law principles, which should arise from the actual practice of nations rather than from controversial analogies to existing practice in other areas. Focusing directly on the idea of investor third-party liability shows that the United States would in fact be an outlier in the world in recognizing such claims. While the United States is of course permitted under international law to impose such liability upon its own corporations, it cannot claim to be doing so as matter of enforcing international law, nor can it - consistent with international law - impose liability upon entities over which it lacks prescriptive jurisdiction.
Wednesday, November 26, 2008
The Andean Community-a forty-year-old regional integration pact of small developing countries in South America-is widely viewed as a failure. In this Article, we show that the Andean Community has in fact achieved remarkable success within one part of its legal system. The Andean Tribunal of Justice (ATJ) is the world's third most active international court, with over 1400 rulings issued to date. Over 90% of those rulings concern intellectual property (IP). The ATJ has helped to establish IP as a rule of law island in the Andean Community where national judges, administrative officials, and private parties actively participate in regional litigation and conform their behavior to Andean IP rules. In the vast seas surrounding this island, by contrast, Andean rules remain riddled with exceptions, under-enforced, and often circumvented by domestic actors. We explain how the ATJ helped to construct the IP rule of law island and why litigation has not spilled over to other issue areas regulated by the Andean Community.
Our analysis makes four broad contributions to international law and international relations scholarship. First, we adopt and apply a broad definition of an effective rule of law, using qualitative and quantitative analysis to explain how the Andean legal system contributes to changing national decision-making in favor of compliance with Andean rules. Our definition and our explanation of the ATJ's contributions to constructing an effective rule of law provide a model that can be replicated elsewhere.
Second, we explain how the Andean legal system has helped domestic IP administrative agencies in the region resist pressures for stronger IP protection from national executives, the United States, and American corporations. We emphasize the importance of these agencies rather than domestic judges as key constituencies that have facilitated the emergence of an effective rule of law for IP. As a result of the agencies' actions, Andean IP rules remain more closely tailored to the economic and social needs of developing counties than do the IP rules of the Community's regional neighbors.
Third, the reality that the ATJ is effective, but only within a single issue area, makes the Andean experience of broader theoretical interest. We offer an explanation for why Andean legal integration has not extended beyond IP. But our answer suggests avenues for additional research. We note that Andean IP rules are more specific than other areas of Andean law and that most administrative agencies in the region lack the autonomy needed to serve as compliance partners for ATJ rulings. We also find that, outside of IP, the ATJ is unwilling to issue the sort of purposive interpretations that encourages private parties to invoke Andean rules in litigation. The result is both a lack of demand for and supply of ATJ rulings.
Fourth, our study of the Andean legal system provides new evidence to assess three competing theories of effective international adjudication - theories that ascribe effectiveness to the design of international legal systems, to the ability of member states to sanction international judges, and to domestic legal and political factors. We also explore the possibility that rule of law islands may be emerging in other treaty-based systems subject to the jurisdiction of international tribunals.
WTO Appellate Body Report: European Communities - Bananas Dispute (Second Recourse to DSU Article 21.5 by Ecuador and the United States)
Das Werk ermöglicht Juristen, Historikern und Politikwissenschaftlern einen Zugang zu den bislang nur punktuell erforschten britischen Kriegsverbrecherprozessen nach dem Zweiten Weltkrieg. Nach einer Darstellung der historischen Zusammenhänge folgt eine genaue Darstellung der Rechtsgrundlage der Verfahren, des königlichen Erlasses (Royal Warrant) vom 18. Juni 1945, sowie umfangreiche Statistiken. Enthalten ist eine detaillierte Darstellung der Strafarten und Freiheitsstrafen. Außerdem erfolgen eine Analyse der Gerichtsbesetzungen und eine Darstellung der Tatorte und angeklagten Handlungen sowie der Nationalitäten der Opfer und Täter. Dieses Kernstück der Arbeit gestattet einen systematischen Zugang zu den Verfahren. In den britischen Kriegsverbrecherprozessen wurden außerdem Zurechnungsstrukturen diskutiert, die bis heute große Relevanz im Völkerstrafrecht besitzen. Diese werden zum Abschluss dargestellt, anhand von Beispielsfällen erläutert und in Beziehung zum heutigen Völkerstrafrecht gesetzt. Zu nennen sind hier Common Design bzw. Joint Criminal Enterprise, Vorgesetztenverantwortlichkeit und Befehlsnotstand.
- P. Rowe, The obligation of a state under international law to protect members of its own armed forces during armed conflict or occupation
- D. Stephens & A. Lewis, The targeting of civilian contractors in armed conflict
- G. Boas & T.L.H. McCormack, Learning the lessons of the Milošević trial
- N. Melzer, Targeted killing or less harmful means? – Israel’s High Court judgment on targeted killing and the restrictive function of military necessity
- Symposium: Iraqi High Tribunal
- M.A. Newton, Implementing international law: a qualified defense of the Al Dujail trial
- E.H. Blinderman, The execution of Saddam Hussein – a legal analysis
- W.H. Wiley, The case of Taha Yaseen Ramadan before the Iraqi High Tribunal: an insider’s perspective
- A. McDonald, The year in review
- E.C. Rojo & M. Nybondas, International criminal courts round up
- Y. Ronen, Israel, Hizbollah, and the second Lebanon war
- P.J.C. Schimmelpenninck van der Oije, International humanitarian law from a field perspective – case study Nepal
Tuesday, November 25, 2008
Yale Law School will hold a conference on April 24, 2009, to honor the work of W. Michael Reisman ’64 LL.M, ’65 J.S.D. Professor Reisman is the Myres S. McDougal Professor of International Law at Yale Law School, where he has been on the faculty since 1965. He has been a visiting professor in Tokyo, Hong Kong, Berlin, Basel, Paris, and Geneva. He is a Fellow of the World Academy of Art and Science and a former member of its Executive Council. From 1992-1995, he served as a member and subsequently chairman of the Inter-American Commission on Human Rights. He is the President of the Arbitration Tribunal of the Bank for International Settlements and has been elected to the Institut de Droit International. In addition to being a world-renowned scholar, Professor Reisman is an active practitioner, serving as an arbitrator in countless public international and investor-state arbitrations and as counsel in other arbitrations and in cases before the International Court of Justice.
Professor Reisman has published widely in the area of international law and jurisprudence. His publications include hundreds of articles and more than twenty books, the most recent of which are Foreign Investment Disputes: Cases, Materials and Commentary (with Bishop and Crawford); and International Law in Contemporary Perspective (with Arsanjani, Wiessner and Westerman).
Leading international law scholars will come from the United States and around the world to participate in the April 24 conference. The event will begin with introductory remarks by Dean Harold Hongju Koh at 8:30 a.m. and will be followed by two morning panels on Jurisprudence and The Use of Force. The afternoon will open with a panel on Trade, Investment, and Dispute Settlement and end with one on Human Rights. Judge Rosalyn Higgins, President of the International Court of Justice, will give the closing remarks at 5:30 p.m. The conference will conclude with a reception in the Alumni Reading Room at 6:00 p.m.
The panel discussions are free and open to the public. For further information about the program, please see the conference agenda. If you plan to attend, please RSVP by sending an email to firstname.lastname@example.org.
- Yulia Andreeva, Salvaging or Sinking the Investment? MHS v. Malaysia Revisited
- Elena Fasoli, Declaratory Judgments and Official Apologies as Forms of Reparation for the Non-Material Damage Suffered by the State: The Djibouti-France Case
- Juan J. Quintana, Procedure before the ICJ: What is the Exact Date of the Closure of the Written Phase of Proceedings?
- Nikolaos Lavranos & Nicolas Vielliard, Competing Jurisdictions Between MERCOSUR and WTO
- Dragana Radosavljevic, Restorative Justice under the ICC Penalty Regime
- Phaedon John Kozyris, Islands in the Recent Maritime Adjudications: Simplifying the Aegean Conundrum
- Elizabeth Riddell-Dixon, Canada and Arctic Politics: The Continental Shelf Extension
- Ki-Jun You, Advisory Opinions of the International Tribunal for the Law of the Sea: Article 138 of the Rules of the Tribunal, Revisited
- Nien-Tsu Alfred Hu, The 2001 UNESCO Underwater Cultural Heritage Convention and Taiwan's Domestic Legal Regime
- Lena Skoglund, Diplomatic Assurances Against Torture An Effective Strategy? A Review of Jurisprudence and Examination of the Arguments
- Jens Elo Rytter, Self-Determination of Colonial Peoples The Case of Greenland Revisited
- Gerhard Allinger, The Rule of Exhaustion of Local Remedies in the Context of the Responsibility of International Organisations
- Carlo Focarelli, Promotional Jus Cogens: A Critical Appraisal of Jus Cogens' Legal Effects
- Katak Malla, Current State of the Law of International Watercourses: Progress and Paradigm Shifts 1815-2008
- Marie Wilke, Emerging Informal Network Structures in Global Governance Inside the Anti-Money Laundering Regime
Monday, November 24, 2008
- Alexander Keck & Simon Schropp, Indisputably Essential: The Economics of Dispute Settlement Institutions in Trade Agreements
- Jean-Jacques Hallaert, Proliferation of Preferential Trade Agreements: Quantifying its Welfare Impact and Preference Erosion
- Daniels Persin, Free Movement of Labour: UK Responses to the Eastern Enlargement and GATS Mode 4
- Robert Stelzer, GATT Doctrine and the Limits of the WTO: An Investigation into Germany's Stem Cell Act
- Rup Singh & Biman Prasad, Small States, Big Problems: Small Solutions from Big Countries
- Sachin Chaturvedi & S.K. Mohanty, The WTO and Trade in Electronically Delivered Software: Emerging Challenges and Policy Options—An Indian Perspective
- Prabhash Ranjan, Industrial Tariff Reduction: Why the Best Might Still Turn Out to Be the Worst?
Riedel: Rechtsbeziehungen zwischen dem Internationalen Währungsfonds und der Welthandelsorganisation
Der IWF und die WTO sind als internationale Organisationen mit ihren Rechtsordnungen Bestandteile des Völkerrechts. Im Rahmen dieser Rechtsordnungen gibt es im Bereich des Handels und der Subventionen häufig Spannungen und Normenkollisionen, da die Regelwerke beider Organisationen nicht hinreichend genug abgestimmt sind. Aus diesem Grund kommt es zu organisationsüberschneidenden Streitverfahren im Rechtssystem der WTO.
Diese Arbeit zeigt, dass eine stärkere Kooperation und Koordination zwischen IWF und WTO dabei hilft, diese Streitverfahren zu vermeiden. Nach einem Rechtsvergleich beider Organisationen untersucht das Werk die gegenseitigen Rechtsbeziehungen, begrenzt auf die Bereiche des Handels und der Subventionen. Hierbei verfolgen viele Mitgliedstaaten zahlungspolitische Ziele mit Hilfe von Handelsmaßnahmen, die Bestandteile von IWF-Programmen sind und deren rechtliche Zulässigkeit in der WTO umstritten ist. Streitverfahren innerhalb der WTO, auf die das Werk Bezug nimmt, sind daher vorprogrammiert.
Der Autor bietet Lösungen zur Behebung dieser Probleme an und leistet einen Beitrag für die zukünftige Entwicklung der Internationalen Finanz- und Wirtschaftsarchitektur.
Debates over the best way to identify human rights violations, assess compliance with treaty obligations, and measure human rights progress over time have preoccupied scholars and practitioners for many years. These debates have been especially pressing in the field of economic, social, and cultural rights, where the need for new methodologies has been felt most urgently. Quantitative data has been forwarded as a central tool in the drive for better methods of assessment, monitoring, and advocacy. Among quantitative tools, human rights indicators have been identified as especially powerful. Rights indicators are understood to have a variety of advantages: they render complex data simple and easy to understand; they can be designed to demonstrate compliance with obligations, fulfillment of rights, and government efforts toward these goals; and they are capable of capturing progress over time and across countries.
This Article closely examines the use of indicators by U.N. bodies charged with monitoring State compliance with human rights treaties. The Article places these efforts to create human rights indicators in conversation with scholarship on audit and standardization from the social sciences. We conclude that while there are very real drawbacks involved in the indicators project, debates about indicators may provide advocates with new opportunities to use the language of science and objectivity as a powerful tool to hold governments to account. However, because human rights compliance indicators threaten to close space for democratic accountability and purport to turn an exercise of judgment into one of technical measurement, advocates of human rights would do well to remain vigilant to effects of the elisions at work in the indicators project. The conundrum of democratic accountability and the failure to clearly locate responsibility for judgment in international human rights assessment exercises are not products of the tools chosen to carry out those exercises, but are instead structural problems, foundational to international human rights law as it exists today. Thus, some of the core problems we argue are inherent in the indicators project would still be present even if quantitative indicators were banished from human rights assessment projects. Nonetheless, the use of quantitative indicators tends to disguise those problems as technical ones of measurement and data availability.
The Article unfolds as follows: in Section I, we explore some of the conditions leading to the increasing reliance on indicators for monitoring the fulfillment and/or enjoyment of international human rights, especially economic and social rights. Using the example of the International Covenant on Economic, Social and Cultural Rights, we consider the way in which that treaty's monitoring committee has shifted from attempting to create and directly apply indicators in the measurement of compliance with treaty obligations to calling on States to identify and implement their own indicators. In Section II, we discuss several of the problems integral to the use of indicators in human rights contexts and what those difficulties have in common with the wider turn to auditing practices in management and control contexts. In Section III, we examine the ongoing efforts of the human rights treaty bodies and the U.N. Office of the High Commissioner for Human Rights to create international indicators applicable to all States, and we assess that effort in light of the problems discussed in Section II, as well as considering issues of authority and judgment in human rights law. Section IV considers human rights indicators as a technology of global governance, warning that-if not carefully designed to do otherwise-human rights compliance indicators have a tendency to close off spaces for participation and democratic contestation.
- Mini-Symposium on Transparency in the WTO
- Debra P. Steger, Introduction to the Mini-Symposium on Transparency in the WTO
- Peter Van den Bossche, NGO Involvement in the WTO: A Comparative Perspective
- Yves Bonzon, Institutionalizing Public Participation in WTO Decision Making: Some Conceptual Hurdles and Avenues
- Padideh Ala’i, From the Periphery to the Center? The Evolving WTO Jurisprudence on Transparency and Good Governance
- Ljiljana Biukovic, Selective Adaptation of WTO Transparency Norms and Local Practices in China and Japan
- Ernst-Ulrich Petersmann, Judging Judges: From ‘Principal-Agent Theory’ to ‘Constitutional Justice’ in Multilevel ‘Judicial Governance’ of Economic Cooperation Among Citizens
- Marco Bronckers, From ‘Direct Effect’ to ‘Muted Dialogue’: Recent Developments in the European Courts’ Case Law on the WTO and Beyond
- Henry Gao & C. L. Lim, Saving the WTO from the Risk of Irrelevance: The WTO Dispute Settlement Mechanism as a ‘Common Good’ for RTA Disputes
- Antony Taubman, Rethinking TRIPS: ‘Adequate Remuneration’ for Non-voluntary Patent Licensing
- Kasturi Das, Coping with SPS Challenges in India: WTO and Beyond
- Lothar Ehring, Public Access to Dispute Settlement Hearings in the World Trade Organization
- Axel Dreher & Katharina Michaelowa, The political economy of international organizations
- Bruno S. Frey, Outside and inside competition for international organizations—from analysis to innovations
- J. Lawrence Broz, Congressional voting on funding the international financial institutions
- Jakob De Haan, The effect of ECB communication on interest rates: An assessment
- Nikitas Konstantinidis, Gradualism and uncertainty in international union formation: The European Community’s first enlargement
- Roland Vaubel, The political economy of labor market regulation by the European Union
Sunday, November 23, 2008
To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishing suspected terrorists from nonterrorists? This Article shows that the law of war can and should be interpreted or supplemented to account for the exceptional aspects of an indefinite conflict against a transnational terrorist organization by analogizing detention to military targeting and extrapolating from targeting rules. A targeting approach to the detention standard-of-certainty question provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left open by recent Supreme Court detention cases, including Boumediene v. Bush. Targeting rules include a reasonable care standard for dealing with the practical and moral problems of protecting innocent civilians from injury amid clouds of doubt and misinformation, though the application of this standard in the detention context must account for differences such as a temporal dimension, available procedural mechanisms, and political and strategic context. Applying a targeting law methodology, this Article offers a law of war critique of past and current U.S. government detention policies. It recommends several ways to remedy them, including through an escalating standard of certainty as time in detention elapses, comparative consideration of accuracy-enhancing adjudication procedures, and greater decisionmaking transparency.
- Kristen E. Boon, Coining a New Jurisdiction: The Security Council as Economic Peacekeeper
- McKay Cunningham, The Montreal Convention: Can Passengers Finally Recover for Mental Injuries?
- Colin B. Picker, International Law's Mixed Heritage: A Common/Civil Law Jurisdiction
- Siegfried Wiessner, Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples
- Ed Bates, Avoiding Legal Obligations Created by Human Rights Treaties
- Alice Edwards, The Optional Protocol to the Convention Against Torture and the Detention of Refugees
- Pierre Schammo, Regulating Transatlantic Stock Exchanges
- Adeline Chong, Choice of Law for Unjust Enrichment/Restitution and the Rome II Regulation
- Trevor C. Hartley, Choice of Law for Non-Contractual Liability: Selected Problems Under the Rome II Regulation
- Lavanya Rajamani, From Berlin to Bali and Beyond: Killing Kyoto Softly?
- Andrew Serdy, Is There a 400-Mile Rule in UNCLOS Article 76(8)?
Call for Papers: Second Biennial General Conference of the Asian Society of International Law (Update)
The Rome Statute of the International Criminal Court is both inspiring and frustrating. On the one hand, by providing detailed definitions of the core international crimes, the possible modes of participation in those crimes, and the permissible grounds for excluding criminal responsibility, the Statute represents the international community's most ambitious attempt to create a general and special part of international criminal law. On the other hand, most of the drafters of the Statute were diplomats who had no practical criminal law experience of any kind, much less academic expertise in international criminal law or comparative criminal law. As a result, the Rome Statute's substantive provisions are often confusing, contradictory, and of uncertain application - an "unsystematic conglomeration from a variety of legal traditions," as one scholar has memorably put it.
This draft book chapter attempts to provide a systematic and comparative overview of the substantive criminal law of the Rome Statute. Section I provides an introduction to the Statute: its drafting history, jurisdictional principles, sources of law, and rules of procedure and evidence. Section II discusses the Statute's general part: theories of punishment, liability requirements (acts and omissions, material and mental elements, modes of participation), defenses, and sanctions. Finally, Section III examines the Statute's special part: the conceptual structure of the crimes within the jurisdiction of the Court and the crimes themselves: genocide, crimes against humanity, war crimes, and aggression.
The chapter is aimed primarily at domestic criminal law scholars, particularly those with an interest in comparative criminal law. But it should be of interest to international criminal law scholars, as well.