This essay sketches the constitutional dormancy of Missouri v. Holland and the potential for its activation. The essay first describes how the treatymakers declined the Treaty Power offered them by the Court. In the near century since the ruling, no treaty appears to have depended on the decision for authority. The treatymakers have worked from contrary constitutional premises, establishing a sort of parallel constitutional universe in which the ruling was never handed down. Through these years, Missouri v. Holland has failed accurately to represent prevailing constitutional norms on the question. In other words, arguably the decision is no longer good law if it ever was.
But Holland may yet live. The key moving part here is the transformed global context. Globalization disaggregates nation-states, facilitating the global interactivity of constituent subnational jurisdictions. This creates new spaces for the states as international actors, including as parties to international agreements. These new international capacities may lessen the need for Holland-like powers in the national government, as the states become more amenable to international discipline. To the extent that international law implicates areas of exclusive subnational authority, the architecture of global society now includes suitable channels of interaction. On the other hand, the transaction costs of managing treaty relationships with multiple subnational entities argues for the maintenance of intermediary power in national governments. The discipline of subnational authorities may remain insufficient to address global imperatives. Some global issues can't wait for the perfection of the legal personality of subnational actors.
In other words, the world may need Missouri v. Holland. If Holland is to be resurrected, it probably won't be out of indigenous American concern. More likely, other actors will press the use of Holland's powers on the United States, in the way of demands lodged with the national government to bring the states into line with international undertakings. Although the national government has finessed recent situations in which a broad interpretation of the Treaty Power might have been required, it has yet to be put to the test. But it is not hard to conjure up scenarios in which the balance would tip in favor of using a treaty to trump state authority.
Saturday, December 20, 2008
Friday, December 19, 2008
The imperatives of sovereignty, human rights and national security very often pull in different directions, yet the relations between these three different notions are considerably more subtle than those of simple opposition. Rather, their interaction may at times be contradictory, at others tense, and at others even complementary. This collection presents an analysis of the irreducible dilemmas posed by the foundational challenges of sovereignty, human rights and security, not merely in terms of the formal doctrine of their disciplines, but also of the manner in which they can be configured in order to achieve persuasive legitimacy as to both methods and results. The chapters in this volume represent an attempt to face up to these dilemmas in all of their complexity, and to suggest ways in which they can be confronted productively both in the abstract and in the concrete circumstances of particular cases.
The increasingly widespread expression "global justice" marks an important shift in the structure of moral discourse. Traditionally, international relations were seen as sharply distinct from domestic justice. First, it focused on interactions among states, and later, evaluated the design of a national institutional order in light of its effects on citizens. Such institutional moral analysis is becoming applied to supranational institutional arrangements, nowadays more pervasive and important for the life prospects of individuals. The traditional lens suggested fair agreements among states. The new lens shows that the global institutional order is unfair because it enriches elites in both rich and poor countries and perpetuates the oppression and impoverishment of the majority.
Thursday, December 18, 2008
In its judgment (judgment not yet available online; summary here; press release here; New York Times story here; Crimes of War Project article here), the Trial Chamber convicted Bagosora, Ntabakuze and Nsengiyumva of genocide, crimes against humanity, and war crimes. In particular, Bagosora was convicted for, among other things, "the killings of Prime Minister Agathe Uwilingiyimana, [President of the Constitutional Court] Joseph Kavaruganda, Frédéric Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza, Augustin Maharangari, [and] the 10 Belgian peacekeepers." The three were acquitted of conspiracy to commit genocide before April 7, 1994. Kabiligi was acquitted of all charges, and the Trial Chamber ordered him released. The three convicted were each sentenced to life imprisonment.
In force in 70 countries around the world and covering more than two thirds of world trade, the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) is considered to be the most successful convention promoting international trade.
According to many commentators, this success is due, among others, to the fact that the Convention does not directly impact on the domestic law of the various legal systems, as it applies only to international - as opposed to purely domestic - contracts. The Convention, in other words, does not impose changes in the domestic law, which makes it easier for States to adopt the Convention. This does not mean, however, that the Convention does not have any impact on the domestic law at all. This book analyzes - through 24 country reports as well as a general report submitted to the 1st Intermediate Congress of the International Academy of Comparative Law held in November 2008 in Mexico City - to what extent the Convention de facto influences domestic legal systems. In particular, the book examines the Convention's impact on the practice of law, the style of court decisions as well as the domestic legislation in the area of contract law.
International law does not exist in a vacuum, and one of its more complicated relationships to the outside world is its relationship to science. First, as Hans Kelsen has proposed, international law itself can be studied scientifically, and thus international legal scholarship may be qualified as ‘science’. This applies not only to international law as such but also to some of its more detailed applications: even such activities as treaty interpretation are regularly subject to scientific analysis. Second, international law contains rules governing the acceptability of scientific and technological data in areas such as food safety or health. Third, international law forms part of the raw data used in other sciences. Thus, political scientists, economists, historians, and ethicists (to name just a few) all make use of insights from international law to a greater or lesser extent. Fourth, international law is sometimes based on the insights gained from other sciences: political scientists may contribute to treaty design, while environmental scientists may help determine the substance of and indeed provide the justification for environmental protection agreements. Fifth, sometimes international law is used itself to protect scientific insights and understandings. Intellectual property rights law is a prominent example. Sixth, international law may also be used to protect the objects of scientific research. Here, a prominent example is the protection of archaeological sites.
While the above list is by no means exhaustive, it does illustrate just how wide-ranging the connections between science and international law can be. The Third Research Forum, co-organized by ESIL and ASIL and taking place in Helsinki on 2-3 October 2009, aims to chart the terrain and explore the complexities of this multifaceted relationship. To this end, international lawyers (and others, of course, provided they are members of either ESIL or ASIL, or both) are invited to submit abstracts in order to participate in panel discussions on the following, fairly broad, topics:
- Data Protection and International Law
- Climate Change and Global Environmental Protection
- Hermeneutics and Interpretation
- Global Health Issues
- Food Safety and the Protection of Animals, Plants and Humans
- Arms Control and Disarmament
- Scientific Evidence in International Adjudication
- Genetically Modified Organisms and the Law of World Trade
- Intellectual Property Rights
- The Metaphysics of Economics in International Law and Global Governance
- The Science of International Law/International Law as Science
- Developments in the Law of the Sea, including Maritime Delimitation
- Developments in the Law of Outer Space
Abstracts should consist of no more than 150 words, be clear, concise and to the point, and be accompanied by a brief curriculum vitae. They may be written in English or French. Please indicate for which panel the abstract is intended. There will be, eventually, 8-10 panels with three or four panellists each. Abstracts should be sent both to firstname.lastname@example.org and email@example.com by 15 February, 2009. Selected presenters will be informed before the end of March 2009 and provisional papers should be submitted before the end of July. Speakers will be exempted from the conference fee and a limited number of scholarships will be available to help cover travel and accommodation costs.
In its decision (summary here; press release here; judgment not yet available online), the Trial Chamber found both Haraqija and Morina guilty of contempt. It sentenced Haraqija to five months imprisonment and Morina to three months.
Wednesday, December 17, 2008
- Expanding TJ Theory and Practice
- Zinaida Miller, Effects of Invisibility: In Search of the ‘Economic’ in Transitional Justice
- Roger Duthie, Toward a Development-sensitive Approach to Transitional Justice
- Ruben Carranza, Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes?
- Lisa J. Laplante, Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework
- Case Study: Nepal
- Daniel Aguirre & Irene Pietropaoli Gender Equality, Development and Transitional Justice: The Case of Nepal
- Tafadzwa Pasipanodya, A Deeper Justice: Economic and Social Justice as Transitional Justice in Nepal
- Notes from the Field
- Patrick Vinck & Phuong Pham, Ownership and Participation in Transitional Justice Mechanisms: A Sustainable Human Development Perspective from Eastern DRC
- Christopher J. Colvin, Purity and Planning: Shared Logics of Transitional Justice and Development
The International Journal of Transitional Justice invites submissions for its 2009 special issue titled ‘Whose Justice? Global and Local Approaches to Transitional Justice’ to be guest edited by Professor Kimberly Theidon, Associate Professor of Anthropology, Harvard University and Executive Director of Praxis Institute for Social Justice.
A genealogy of transitional justice indicates that from the post-WWII tribunals at Nuremberg and Tokyo to the proliferation of tribunals and truth commissions in the present, the field of transitional justice has both expanded and normalized. The burgeoning of transitional justice is often associated with the post-Cold War political climate in which a significant number of authoritarian, oppressive and frequently violent nation-states began to transition towards peace and procedural democracy. Importantly, in the post-Cold War context the ‘new wars’ increasingly involve multiple and armed non-state actors and, at times, massive civilian participation in the violence. Thus transitional justice practitioners are increasingly called upon to intervene in contexts in which the state is one perpetrator among many, and in which the issues of justice, redress and social reconstruction involve ‘intimate enemies.’
To address these challenges, there has been an increased interest in local or community-based justice measures. For example, in his August 2004 report on transitional justice and the rule of law, the UN Secretary General wrote that ‘due regard must be given to indigenous and informal traditions for administering justice or settling disputes, to help them to continue their often vital role and to do so in conformity with both international standards and local tradition.’ Similarly, the UN Security Council in October of the same year underlined the ‘importance of assessing the particular justice and rule of law needs in each host country, taking into consideration the nature of the country’s legal system, traditions and institutions, and of avoiding a "one size fits all" approach.’
In this special issue of the IJTJ, we invite theoretical, practical and policy oriented papers that examine both the complementary and contradictory logics introduced when considering a politics of scale. Just as we advocate moving beyond the disciplinary fiefdoms that hamper our collective thinking on these issues, we also encourage thinking that explores the points of articulations between international, national and local transitional justice measures.
Papers in this issue may address topics such as:
• the definition of transitional justice and its goals — who defines the field and whether there are universal concepts which can be applied
• the relationship between international justice mechanisms and local processes and priorities – including complementarity, sequencing and differing definitions of victimhood.
• the role of actors/ stakeholders involved when introducing a politics of scale into our analyses
• how do local priorities, histories and international standards converge and diverge and with what consequences
• how do transitional justice mechanisms contribute, if they do, to the goal of reconciliation/ social reconstruction
• how might local justice mechanisms be incorporated into state and international interventions
• what is the role of ritual in accessing guilt and administering various forms of justice
• traditional justice – its use and misuse in its application to transitional justice
The deadline for submissions is April 15, 2009.
Papers should be submitted online from the IJTJ webpage at www.ijtj.oxfordjournals.org
For questions or further information, please contact the Managing Editor at firstname.lastname@example.org
- Stefano Troiano, The CISG's Impact on EU Legislation
- Nicole Van Crombrugghe, Pre-Contractual Disclosure in Belgium
Sadat: Transnational Judicial Dialogue and the Rwandan Genocide: Aspects of Antagonism and Complementarity
The Rwandan genocide remains one of the most horrific atrocities of the Twentieth Century, resulting in the death of an estimated 500-800,000 human beings, massacred over a one hundred day period. In the fourteen years since the genocide, attempts at justice and reconciliation in Rwanda have involved a delicate interplay between national legal systems and the international legal order. This article examines three fora in which Rwandans have been tried for involvement in the genocide: the International Criminal Tribunal for Rwanda, Rwandan courts including Gacaca Tribunals, and French attempts to exercise universal jurisdiction. Using Rwanda as a case study, the article illustrates the issues, concerns, and difficulties that arise when multiple jurisdictions assert a right to exercise criminal jurisdiction over the perpetrators of serious atrocity crimes. Beginning with a discussion of the political context, this article considers what the competing narratives and litigation in various fora have meant for the project of international and transnational criminal justice. Cases involving the commission of atrocities pose unique challenges for the international legal order. As the normative structure of international criminal law has arguably been strengthened, political constraints increasingly come to the fore. As illustrated in Rwanda, universal jurisdiction or other bases of jurisdiction may remain necessary vehicles for justice and reconciliation, or, at the very least, they may serve as catalyst for change in Rwanda itself.
Tuesday, December 16, 2008
- T.J. Grierson Weiler, Introduction
- Craig S. Miles, Where’s My Umbrella? An “Ordinary Meaning” Approach to Answering Three Key Questions that Have Emerged from the “Umbrella Clause” Debate
- Laura Halonen, Containing the Scope of the Umbrella Clause
- Craig Miles, Laura Halonen, Andrea J. Menaker, Kaj Hober, Thomas Walde, Graham Coop, & Uche Onwuamaegbu, Panel Discussion: Where's My Umbrella? A Look Inside The Umbrella Clause
- Devashish Krishan, A Notion of ICSID Investment
- Anthony C. Sinclair, ICSID’s Nationality Requirements
- Devashish Krishan, Anthony C. Sinclair, Charles H. Brower, II, David D. Caron, William W. Park, Christoph Schreuer, & Pieter H.F. Bekker, Panel Discussion: Are the ICSID Rules Governing Nationality & Investment Working?
- Gabriel Bottini, Protection of essential interests in the BIT era
- Roberto Aguirre Luzi, BITs & Economic crises: Do States have carte blanche?
- Gabriel Bottini, Robert AguirreLuzi, David R. Haigh, Margrete Stevens, Andrea K. Bjorklund, Marinn Carlson, & Alex De Gramont, Panel Discussion: Is There a Need for the Necessity Defense For Investment Law?
- Noah Rubins, MFN Clauses, Procedural Rights, and a Return to the Treaty Text
- Walid Ben Hamida, MFN and Procedural Rights: Solutions from WTO Experience?
- Noah Rubins, Todd J. Grierson Weiler, Carolyn B. Lamm, Charles N. Brower, Don Wallace, & Michael Woods, Panel Discussion: MFN Treatment - What Are Its Limits In The Investment Context?
- Borzu Sabahi, National Treatment – Is Discriminatory Intent Relevant?
- Sylvie Tabet, Beyond the Smoking Gun – Is a Discriminatory Objective Necessary to Find a Breach of National Treatment?
- Borzu Sabahi, Sylvie Tabet, Ian A. Laird, Stephen Jagusch, Todd J. Grierson Weiler, Gonzalo Flores, & Jack J. Coe, Jr, Panel Discussion: National Treatment – Is Discriminatory Intent Relevant?
Long neglected in terms of international governance and management, the Arctic is slowly attracting greater attention as a region in need of an effective regime. Whilst the Arctic is not plagued by unresolved territorial disputes, there is the spectre of rising tension over yet to be asserted maritime claims over the vast Arctic Ocean. When this issue is added to the growing alarm over the impact of climate change upon the Arctic, which brings with it not only associated significant environmental change but also increased access within the region, it becomes clear that a region which for all of the Twentieth Century was pushed to the side when it came to the regulation of international affairs has the potential to take centre stage as state interests are awoken and global concerns advance. This paper reviews some of these recent developments with a particular focus upon outer continental shelf claims to the Arctic Ocean, navigational rights and freedoms within the Northeast and Northwest Passage, and the development of the Arctic Council. It argues that the circumstances are ripe for the development of an Arctic Treaty, borrowing from some of the concepts and principles which have been adopted in Antarctica.
Monday, December 15, 2008
- James D. Ingram, What Is a “Right to Have Rights”? Three Images of the Politics of Human Rights
- Erik Voeten, The Impartiality of International Judges: Evidence from the European Court of Human Rights
- Clifford J. Carrubba, Matthew Gabel, & Charles Hankla, Judicial Behavior under Political Constraints: Evidence from the European Court of Justice
Narula: The Story of Narmada Bachao Andolan: Human Rights in the Global Economy and the Struggle Against the World Bank
This Chapter describes the struggle of India's Narmada Bachao Andolan (NBA), a social movement that arose in response to the building of a World Bank-funded dam project along the Narmada River. The project - which has displaced hundreds of thousands and has imposed stunning environmental costs without reaping the promised benefits of modernization - has been the source of constant controversy. In response, the government has maintained that large dams are essential for achieving the common good, reflecting the dominance of a "balancing" or "cost-benefit" approach to development over an approach that puts human rights at the center of the debate. Controversy surrounding the dam led to the World Bank's withdrawal from the project and to the creation of the World Bank Inspection Panel in 1993 - a milestone for the human rights movement, and the first mechanism established to enable local groups to challenge World Bank projects. The Chapter analyzes how a local, grassroots social movement was able to influence human rights discourse at the international level and create a forum for those most affected by development-led displacement. Prior to the Panel's creation, local groups had no formal way of challenging development schemes conceived and financed in faraway capitals. Fifteen years after its creation, the Panel remains increasingly important to human rights advocacy worldwide and despite its mixed record, represents a major milestone in integrating international human rights norms into the practice of development aid. The Chapter also reviews the efficacy of various litigation and non-litigation strategies deployed by the NBA in an attempt to halt construction of the dam and ensure appropriate resettlement and rehabilitation of those displaced by the project.
Today, Northern California International Law Scholars, American Society of International Law West, and Santa Clara University School of Law will host the Northern California International Law Scholars Roundtable. The event will take place at Santa Clara University School of Law. Here's the program:
- Beth Van Schaack (Santa Clara Univ. - Law), "Finding the Tort of Terrorism in International Criminal Law"
- Comment: Allen Weiner (Stanford Univ. - Law)
- Chimène Keitner (Univ. of California - Hastings College of Law), "Constitutions Beyond Borders: Recourse for Extraterritorial Rights Violations in Comparative Perspective"
- Diane Marie Amann (Univ. of California, Davis - Law)
- Marjorie Florestal (Univ. of the Pacific - McGeorge School of Law), "John F. Kennedy, Globalization and Development: A Legacy"
- Comment: Joel Paul (Univ. of California - Hastings College of Law)
- Oona Hathaway (Univ. of California, Berkeley - Law), "Imbalance of Power: The Growth of Presidential Power Over U.S. International Lawmaking"
- Comment: John Cary Sims (Univ of the Pacific - McGeorge School of Law)
- John Barton (Stanford Univ. - Law), "The Future of Freedom"
- Comment: David Caron (Univ. of California, Berkeley - Law)
Sunday, December 14, 2008
The 2nd annual National Security Law Junior Faculty Workshop will take place in Austin on March 12 and 13, 2009. This event is unique in that it combines discussion of works-in-progress with training in the law of war provided by instructors from the International Committee of the Red Cross and the US Army JAG School. The deadline for submitting a paper or abstract for consideration is January 15th. The full details, including a link to the event announcement, are posted here. Note that you do not have to submit a paper, let alone have your paper selected, in order to attend the event. Questions should be submitted to Bobby Chesney at email@example.com.
- Ralf Michaels, Public and Private Law in the Global Adjudication System: Three Questions to the Panelists
- Charles H. Brower, II, The Functions and Limits of Arbitration and Judicial Settlement Under Private and Public International Law
- Thomas H. Carbonneau, Commercial Peace and Political Competition in the Crosshairs of International Arbitration
- J.H. Dalhuisen, Custom and Its Revival in Transnational Private Law
- William S. Dodge, The Public-Private Distinction in the Conflict of Laws
- J. Patrick Kelly, Naturalism in International Adjudication
- Mark L. Movsesian, International Commercial Arbitration and International Courts
- Christopher A. Whytock, Litigation, Arbitration, and the Transnational Shadow of Law
- Ernest A. Young, Supranational Rulings as Judgments and Precedents
Hurwitz: Universal Jurisdiction and the Dilemmas of International Criminal Justice: The Sabra and Shatila Case in Belgium
The duty of states to prosecute serious international crimes, that is, genocide, war crimes and crimes against humanity, is generally considered a matter of customary international law and jus cogens. In recent years, two trends have developed in tandem that aim to fulfill this duty: the cooperative creation of international courts and tribunals to directly hold individuals to account for international crimes, and the implementation and enforcement by states of statutes criminalizing serious crimes of international law through domestic criminal processes. Many of these domestic statutes are based on the principle of universal jurisdiction, which holds that any state may try an individual for a small set of particularly heinous international crimes. This principle has been broadly championed by human rights advocates and scholars but resisted by some states. The Spanish indictment of General Pinochet, and the Pinochet litigation in the U.K. House of Lords highlighted the debates over this principle and its crucial importance to the human rights movement. Today, domestic criminal statutes in many countries provide a jurisdictional basis for the prosecution of serious international crimes in their courts.
Conscious of its own history in Africa, Belgium became one of the first states to enact a universal jurisdiction statute for grave crimes against international law in 1993. The law was used to prosecute abuses in Rwanda and the Democratic Republic of the Congo before it was applied in 2001 against a more politically controversial incident: Israel's role in the 1982 massacres of Palestinians in the Beirut refugee camps of Sabra and Shatila. The 2001 complaint alleged war crimes, crimes against humanity, and command responsibility by Ariel Sharon and others. Two years of intense legal and political maneuvers ensued, including a series of Belgian legal and legislative "clarifications" concerning the scope of the law. In addition, the case was impacted by the assassination of Elias Hobeika, a Phalangist leader involved in the massacres as he prepared to meet with Belgian parliamentarians about the Israeli role. Ultimately, U.S. Defense Secretary Donald Rumsfeld threatened that Belgium could lose its status as host to NATO's headquarters if it did not rescind the law. Although the Belgian Supreme Court upheld the jurisdictional basis of the statute in February 2003, the Belgian parliament responded shortly thereafter by passing a new law, effectively eliminating the universal jurisdiction provision by requiring that victims or alleged perpetrators have some nexus with Belgium. The politics of the Sharon case notwithstanding, the fate of the statute was surely impacted by several even more contentious complaints filed against former President Bush and Colin Powell for crimes arising from the first Gulf War, and against U.S. General Tommy Franks for war crimes allegedly committed in Iraq in March/April 2003.
The dilemma of universal jurisdiction lies in the tension between law and politics in the pursuit of international criminal justice. Insofar as international criminal law depends on the political will of nation-states, for example in bringing prosecutions, extradition and other matters of trans-border cooperation, politics are inevitable. Given the nature of the litigants, the case of Ariel Sharon et al in Belgium provides an interesting opportunity to examine how law and politics may become inextricably intertwined in human rights cases.