Saturday, January 10, 2009

New Issue: Journal of International Arbitration

The latest issue of the Journal of International Arbitration (Vol. 25, no. 6, December 2008) is out. Contents include:
  • Michael J. Moser, Special New York Convention Number
  • Lucy F. Reed & James Freda, Narrow Exceptions: A Review of Recent U.S. Precedent Regarding the Due Process and Public Policy Defenses of the New York Convention
  • Abby Cohen Smutny & Hansel T. Pham, Enforcing Foreign Arbitral Awards in the United States: The Non-Arbitrable Subject Matter Defense
  • Henri C. Alvarez, The Implementation of the New York Convention in Canada
  • Annette Magnusson, Application of the New York Convention: A Report from Denmark, Finland, Norway, and Sweden
  • Elliott Geisinger, Implementing the New York Convention in Switzerland
  • Piero Bernardini & Marco Perrini, New York Convention of June 10, 1958: The Application of Article V by the Courts in Italy
  • Olivier Caprasse & Bernard Hanotiau, Arbitrability, Due Process, and Public Policy Under Article V of the New York Convention: Belgian and French Perspectives
  • Wolfgang Kühn, Current Issues on the Application of the New York Convention: A German Perspective
  • D. Brian King & Alexandra Schluep, Application of Article V of the New York Convention in the Netherlands
  • Christoph Liebscher, Application of the New York Convention in Austria and Eastern Europe
  • Ilya Nikiforov, Interpretation of Article V of the New York Convention by Russian Courts: Due Process, Arbitrability, and Public Policy Grounds for Non-Enforcement
  • Noah Rubins & Gorsha Sur, Application of Article V of the New York Convention: A Central Asian Perspective
  • Dorothy Ufot, The Influence of the New York Convention on the Development of International Arbitration in Nigeria
  • Nadia Darwazeh & Friven Yeoh, Recognition and Enforcement of Awards under the New York Convention: China and Hong Kong Perspectives
  • Tatsuya Nakamura & Yasuhei Taniguchi, Japanese Court Decisions on Article V of the New York Convention
  • Seung Wha Chang, Article V of the New York Convention and Korea
  • Michael Hwang & Shaun Lee, Survey of South East Asian Nations on the Application of the New York Convention
  • Fali S. Nariman, Application of the New York Convention in India
  • Richard Garnett & Michael Pryles, Recognition and Enforcement of Foreign Awards under the New York Convention in Australia and New Zealand

Waldron: Are Sovereigns Entitled to the Benefit of the International Rule of Law?

Jeremy Waldron (New York Univ. - Law) has posted Are Sovereigns Entitled to the Benefit of the International Rule of Law? Here's the abstract:
The applicability of the ideal we call "the Rule of Law" (ROL) in international law (IL) is complicated by (1) the fact that there is no overarching world government from whom we need protection (of the sort that the ROL traditionally offers) and it is also complicated by (2) the fact that IL affects states, in the first instance, rather than individuals (for whose sake we usually insist on ROL requirements). The paper uses both these ideas as points of entry into a consideration of the applicability of the ROL in IL. It suggests that the the "true" subjects of IL are really human individuals (billions of them) and it queries whether the protections that they need are really best secured by giving national sovereigns the benefit of ROL requirements in IL. For example, a national sovereign's insistence that IL norms should not be enforced unless they are clear and determinate may mean that individuals have fewer protections against human rights violations. More radically, it may be appropriate to think of national sovereigns more as "officials" or "agencies" of the IL system than as its subjects. On this account, we should consider the analogous situation of officials and agencies in a municipal legal system: are officials and agencies in need of, or entitled to, the same ROL protections as private individuals? If not, then maybe it is inappropriate to think that sovereign states are entitled to the same ROL protections at the international level as individuals are entitled to at the municipal level.

Friday, January 9, 2009

New Issue: Arbitration International

The latest issue of Arbitration International (Vol. 24, no. 4, 2008) is out. Contents include:
  • Bernardo M. Cremades & Ignacio Madalena, Parallel Proceedings in International Arbitration
  • Philip Allen Lacovara, Class Action Arbitrations – the Challenge for the Business Community
  • Aldo Frignani, Drafting Arbitration Agreements
  • Epaminontas E. Triantafilou, Amicus Submissions in Investor-State Arbitration After Suez v. Argentina – The Gillis Wetter Prize
  • Norbert Horn, Current Use of the UNCITRAL Arbitration Rules in the Context of Investment Arbitration
  • Howard Yinghao Yang, CIETAC Arbitration Clause Revisited
  • Jean Ho, Decoding Singapore’s International Arbitration Act, Section 12(7)

Cert. Grant: Iraq v. Beaty; Iraq v. Simon

Today, the Supreme Court of the United States granted the petitions for writs of certiorari in Iraq v. Beaty (No. 07-1090) and Iraq v. Simon (No. 08-539). The opinions below, the petitions for certiorari, the briefs in opposition, the petitioners' replies, and the amicus brief of the United States in favor of the petition, are available here. The cases were consolidated, and the question before the Court will be: "Does Republic of Iraq possess sovereign immunity from the jurisdiction of the courts of the United States in cases involving alleged misdeeds of Saddam Hussein regime predicated on now-repealed state sponsor of terrorism subject matter exception to immunity of former 28 U.S.C. § 1605(a)(7)?"

Spiro: NGOs and Human Rights: Channels of Power

Peter J. Spiro (Temple Univ. - Law) has posted NGOs and Human Rights: Channels of Power. Here's the abstract:
This essay, a revised version of which will appear in the Research Handbook on Human Rights (Edward Elgar, forthcoming 2009), attempts to systematize NGO activity relating to human rights. It first describes why human rights supplies fertile ground for the study of non-governmental organizations. As human rights obligations cannot be explained in terms of reciprocal state interest, non-state actors are a probable causal agent in the entrenchment of human rights regimes. The chapter confronts NGOs as agents of material power. The chapter then describes four primary pathways for the exercise of NGO power: through and against states, international organizations, corporations, and each other. Only by situating NGO power relative to state and non-state entities does the breadth and novelty of NGO participation in today's global decision-making come into full relief. Given the fact of that broad power, the chapter concludes by addressing the question of NGO accountability, suggesting that institutionalization of NGO power holds the most promise for appropriately constraining its exercise.

Walzer: On Proportionality

Michael Walzer has posted a short essay titled "On Proportionality" at The New Republic. Here it is:

Let's talk about proportionality--or, more important, about its negative form. "Disproportionate" is the favorite critical term in current discussions of the morality of war. But most of the people who use it don't know what it means in international law or in just war theory. Curiously, they don't realize that it has been used far more often to justify than to criticize what we might think of as excessive violence. It is a dangerous idea.

Proportionality doesn't mean "tit for tat," as in the family feud. The Hatfields kill three McCoys, so the McCoys must kill three Hatfields. More than three, and they are breaking the rules of the feud, where proportionality means symmetry. The use of the term is different with regard to war, because war isn't an act of retribution; it isn't a backward-looking activity, and the law of even-Steven doesn't apply.

Like it or not, war is always purposive in character; it has a goal, an end-in-view. The end is often misconceived, but not always: to defeat the Nazis, to stop the dominos from falling, to rescue Kuwait, to destroy Iraq's weapons of mass destruction. Proportionality implies a measure, and the measure here is the value of the end-in-view. How many civilian deaths are "not disproportionate to" the value of defeating the Nazis? Answer that question, put that way, and you are likely to justify too much--and that is the way proportionality arguments have worked over most of their history.

The case is the same with arguments focused on particular acts of war. Consider the example of an American air raid on a German tank factory in World War Two that kills a number of civilians living nearby. The justification goes like this: The number of civilians killed is "not disproportionate to" the damage those tanks would do in days and months to come if they continued to roll off the assembly line. That is a good argument, and it does indeed justify some number of the unintended civilian deaths. But what number? How do you set an upper limit, given that there could be many tanks and much damage?

Because proportionality arguments are forward-looking, and because we don't have positive, but only speculative, knowledge about the future, we need to be very cautious in using this justification. The commentators and critics using it today, however, are not being cautious at all; they are not making any kind of measured judgment, not even a speculative kind. "Disproportionate" violence for them is simply violence they don't like, or it is violence committed by people they don't like.

So Israel's Gaza war was called "disproportionate" on day one, before anyone knew very much about how many people had been killed or who they were. The standard proportionality argument, looking ahead as these arguments rightly do, would come from the other side. Before the six months of cease-fire (when the fire never ceased), Hamas had only primitive and home-made rockets that could hit nearby small towns in Israel. By the end of the six months, they had far more advanced rockets, no longer home-made, that can hit cities 30 or 40 kilometers away. Another six months of the same kind of cease-fire, which is what many nations at the UN demanded, and Hamas would have rockets capable of hitting Tel Aviv. And this is an organization explicitly committed to the destruction of Israel. How many civilian casualties are "not disproportionate to" the value of avoiding the rocketing of Tel Aviv? How many civilian casualties would America's leaders think were "not disproportionate to" the value of avoiding the rocketing of New York?

The answer, again, is too many. We have to make proportionality calculations, but those calculations won't provide the most important moral limits on warfare.

These are the questions that point us toward the important limits. First, before the war begins: Are there other ways of achieving the end-in-view? In the Israeli case, this question has shaped the intense political arguments that have been going on since the withdrawal from Gaza: What is the right way to stop the rocket attacks? How do you guarantee that Hamas won't acquire more and more advanced rocketry? Many policies have been advocated, and many have been tried.

Second, once the fighting begins, who is responsible for putting civilians in the line of fire? It is worth recalling that in the Lebanon war of 2006, Kofi Annan, then the Secretary-General of the UN, though he criticized Israel for a "disproportionate" response to Hezbollah's raid, also criticized Hezbollah--not just for firing rockets at civilians, but also for firing them from heavily populated civilian areas, so that any response would inevitably kill or injure civilians. I don't think that the new Secretary General has made the same criticism of Hamas, but Hamas clearly has a similar policy.

The third question: Is the attacking army acting in concrete ways to minimize the risks they impose on civilians? Are they taking risks themselves for that purpose? Armies choose tactics that are more or less protective of the civilian population, and we judge them by their choices. I haven't heard this question asked about the Gaza war by commentators and critics in the Western media; it is a hard question, since any answer would have to take into account the tactical choices of Hamas.

In fact, all three are hard questions, but they are the ones that have to be asked and answered if we are to make serious moral judgments about Gaza--or any other war. The question "Is it disproportionate?" isn't hard at all for people eager to say yes, but asked honestly, the answer will often be no, and that answer may justify more than we ought to justify. Asking the hard questions and worrying about the right answers--these are the moral obligations of commentators and critics, who are supposed to enlighten us about the moral obligations of soldiers. There hasn't been much enlightenment these last days.

Shaffer: A Call for a New Legal Realism in International Law: The Need for Method

Gregory Shaffer (Univ. of Minnesota - Law) has posted A Call for a New Legal Realism in International Law: The Need for Method. Here's the abstract:
In this inaugural lecture for Professor Shaffer's Melvin C. Steen Professorship, he provides a typology and assessment of four varieties of international law scholarship: formalist, normative, theoretical and empirical. He shows why there is great need for empirical "law-in-action studies" of international law in a new legal realist vein. The purpose of engaging in research in a new legal realist vein is to uncover issues to which otherwise we are ignorant, to which otherwise we are blind. The purpose is to engage in a method which permits one's incoming predispositions (inevitable no matter how neutral one tries to be) to be challenged and transformed. This is particularly important in a world characterized by constituencies with differing priorities, perspectives and opportunities to be heard. The distinctive features of a new legal realist approach are its commitment to empirical work, including the use of qualitative methods, its engagement with critical analysis, and its commitment to translating empirical findings for a legal policy audience. The lecture situates "new legal realism" in relation to the original legal realist movement in the United States and our current historic context. It provides numerous research examples of what a new legal realist approach offers.

Thursday, January 8, 2009

New Issue: Revue de droit international, de sciences diplomatiques et politiques

The latest issue of the Revue de droit international, de sciences diplomatiques et politiques (Vol. 86, no. 2, Avril-Juin 2008) is out. Contents include:
  • Catherine Maia, Quel avenir pour les enfants d'Afrique? Entre renforcement des droits et dégradation des conditions de vie
  • Mamoud Zani, Les mécanismes internationaux et régionaux de lutte contre la torture. Le système préventif de visites: Complémentarité ou concurrence?
  • Mamoud Zani, La mise en oeuvre de la Convention internationale des droits de l'enfant

Kleffner: Complementarity in the Rome Statute and National Criminal Jurisdictions

Jann Kleffner (Univ. of Amsterdam - Law) has published Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford Univ. Press 2009). Here's the abstract:
This book provides an in depth-examination of the principle of complementarity in the Rome Statute of the International Criminal Court and the implications of that principle for the suppression of genocide, crimes against humanity and war crimes on the domestic level. The book is set against the general background of the suppression of these crimes on the domestic level, its potential and pitfalls. It traces the evolution of complementarity and provides a critical and comprehensive analysis of the provisions in the Rome Statute and the Rules of Procedure and Evidence relevant to complementarity. In so doing, it addresses both substantive and procedural aspects of admissibility, while taking account of the early practice of the ICC. Further attention is devoted to the question whether and to what extent the Rome Statute imposes on States Parties an obligation to investigate and prosecute core crimes domestically. Finally, the book examines the potential of the complementary regime to function as a catalyst for States to conduct domestic criminal proceedings vis-à-vis core crimes.

New Issue: Virginia Journal of International Law

The latest issue of the Virginia Journal of International Law (Vol. 49, no. 2, Winter 2009) is out. Contents include:
  • Vlad Perju, Reason and Authority in the European Court of Justice
  • Salil K. Mehra & Meng Yanbei, Against Antitrust Functionalism: Reconsidering China's Antimonopoly Law
  • Patrick J. Keenan, Sovereign Wealth Funds and Social Arrears: Should Debts to Citizens Be Treated Differently than Debts to Other Creditors?

Wednesday, January 7, 2009

Hague Academy of International Law 2009 Summer Session

The program for the Hague Academy of International Law's 2009 Summer Session is now available. The registration deadline is March 2, 2009. Here are the courses:

Private International Law (July 6-24)
  • A. Bucher (Univ. of Geneva), General Course: The Social Dimension of Private International Law
  • P. De Vareilles Sommières (Univ. of Paris I (Panthéon-Sorbonne)), The International Public Policy Defence
  • V. Musin (St. Petersburg State Univ.), The Influence of International Sales of Goods Convention on Domestic Law Including Conflict of Laws
  • T. Pfeiffer (Univ. of Heidelberg), The Market as a Connecting Factor in Private International Law
  • K. Boele-Woelki (Univ. of Utrecht), The Interaction between Uniform Substantive Law and Conflict of Laws
  • C. Lima Marques (Federal Univ. of Rio Grande do Sul), Protection of the Weaker Party in Private International Law (Consumers, Small Business and Non-Profit-Making Activities)
  • S. Carbone (Univ. of Genoa), Conflict of Laws in Martime Law
  • D. Steger (Univ. of Ottawa), A Comparison of the Dispute Settlement System of the WTO and Investment State Arbitration under the ICSID Convention and Investment Treaties

Public International Law (July 27-August 14)

  • B. Simma (Judge, International Court of Justice), General Course: The Impact of Human Rights on International Law
  • M. Kohen (Graduate Institute of International and Development Studies), Retroactivity in Public International Law
  • M. Villiger (Judge, European Court of Human Rights), The 1969 Vienna Convention on the Law of Treaties - 40 Years After
  • G. Cahin (Univ. of Rennes I), Failed States. Construction and Reconstruction of States in International Law
  • M. Kawano (Waseda Univ.), The Role of Judicial Procedures in the Process of the Pacific Settlement of International Disputes
  • A. Abou-El-Wafa (Cairo Univ.), International Disputes Relating to Land Boundaries in the Jurisprudence of the ICJ
  • J. Alvarez (Columbia Univ.), A New Public International Law Regime for Foreign Direct Investment

NYU School of Law Institute for International Law and Justice Spring 2009 Colloquium

Here's the schedule for the New York University School of Law Institute for International Law and Justice Spring 2009 International Legal Theory Colloquium on "Virtues, Vices, and Human Nature in International Law":
  • January 15, 2009: Derek Jinks (Univ. of Texas - Law), Improving Individual and Institutional Compliance with Laws of War: Proposals from Behavioral Research
  • January 22, 2009: Anne van Aaken (Univ. of St. Gallen - Law), Reducing Biases through International Law Procedures: Insights from Behavioral Law and Economics
  • January 29, 2009: Craig Calhoun (New York Univ. - Institute for Public Knowledge), Humanitarian Action in Cosmopolitan Perspective
  • February 5, 2009: Paolo Carozza (Univ. of Notre Dame - Law & Chair, Inter-American Commission on Human Rights), Local Freedom, Human Rights, and International Law: A Tocquevillian Approach
  • February 12, 2009: Leigh Payne (Oxford Univ. - Sociology), Neither Truth Nor Reconciliation in Confessions of State Violence: Unsettling Accounts and Colombia’s Justice and Peace Law
  • February 26, 2009: William Miller (Univ. of Michigan - Law), Messengers and Intermediaries: Insights from Ancient Law
  • March 5, 2009: Moshe Halbertal (New York Univ. - Law School & Hebrew Univ. - Jewish Thought and Philosophy), Pre-Conditions for Forgiveness
  • March 12, 2009: Joseph Weiler (New York Univ. - Law), Virtues and Vices in the Ethos of European Union law
  • March 26, 2009: Armin von Bogdandy (New York Univ. - Law & Director, Max Planck Institute for Comparative Public Law and International Law), Universality in Diverse Traditions of International Law
  • April 2, 2009: Pierre Rosanvallon (Collège de France), The Metamorphoses of Democratic Legitimace
  • April 7, 2009: Alexander Somek (Univ. of Iowa - Law), Democracy-Enhancing International Law: The Argument for Transnational Effect
  • April 16, 2009: Conference in Honor of Professor Andreas Lowenfeld
  • April 23, 2009: Martha Nussbaum (Univ. of Chicago - Law), Patriotism

Temple University School of Law International Law Colloquium

Here's the schedule for the Temple University School of Law International Law Colloquium for the Spring Semester 2009:
  • January 20, 2009: Jide Nzelibe (Northwestern Univ. - Law), "Courting Genocide: The Unintended Effects of Humanitarian Intervention"
  • February 3, 2009: Elena Baylis (Univ. of Pittsburgh - Law), "Bellwether Trials: From Mass Torts to Mass Atrocities"
  • February 17, 2009: Mark Drumbl (Washington and Lee Univ. - Law), "The Agency and Innocence of Child Soldiers"
  • March 3, 2009: Jack Goldsmith (Harvard Univ. - Law), "Law for States: International Law, Constitutional Law, Public Law"
  • March 24, 2009: André Nollkaemper (Univ. of Amsterdam - Law), tba
  • April 7, 2009: Matt Waxman (Columbia Univ. - Law), "The Use of Force Against States that Might Have WMD"
  • April 21, 2009: Ruti Teitel (New York Law School), "Humanity's Law"

Tuesday, January 6, 2009

University of Georgia School of Law International Law Colloquium Series

Here's the schedule for the University of Georgia School of Law International Law Colloquium Series for the Spring Semester 2009:
  • January 23, 2009: Elena A. Baylis (Univ. of Pittsburgh - Law), "Bellwether Trials"
  • January 30, 2009: Carlos M. Vázquez (Georgetown Univ. - Law), "'Not a Happy Precedent': The Story of Ex parte Quirin"
  • February 6, 2009: Thomas H. Lee (Fordham Univ. - Law), "The International Laws of War and the American Civil War"
  • February 20, 2009: Monica Hakimi (Univ. of Michigan - Law), "A Theory of State Bystander Responsibility"
  • February 27, 2009: David Zaring (Univ. of Pennsylvania - Wharton School), "Why Do Some Regulatory Networks Fail, While Others Succeed?"
  • March 20, 2009: Andrea K. Bjorklund (Univ. of California, Davis - Law), "State Immunity and the Enforcement of Investor-State Arbitral Awards"
  • April 3, 2009: Paul Stephan (Univ. of Virginia - Law), "Privatizing International Law"
  • April 17, 2009: Rachel Brewster (Harvard Univ. - Law), "Trade and Climate Change: Conflicts and Solutions"

Lauterpacht Centre Friday Lunchtime Lectures for Lent Term 2009

Here's the schedule for the Lauterpacht Centre for International Law's Lent Term 2009 Friday Lunchtime Lectures:
  • January 16, 2009: José Caicedo (Dechert LLP, Paris), International Responsibility of International Organizations and Member States
  • January 23, 2009: Gabrielle Marceau (Counsellor to the Cabinet of the Director-General, WTO; Geneva Univ. – Law), Climate Change and the WTO
  • January 30, 2009: Toby Landau (Essex Court Chambers), Investor-State Arbitration: Politics, Legitimacy and the New UNCITRAL Arbitration Rules
  • February 6, 2009: Howard Schiffman (New York Univ. - Center for Global Affairs), Reservations in Marine Conservation Treaties: A Classic Element of Treaty Law in an Evolving Environmental Landscape
  • February 13, 2009: Alan Boyle (Univ. of Edinburgh), Current Trends in International Environmental Law: Reflections on Birnie & Boyle (3rd ed., 2009)
  • February 20, 2009: Michael Waibel (British Academy Research Fellow, Lauterpacht Centre/Downing College, Cambridge), Financial Crises in International Law
  • February 27, 2009: Paul Berkman (Head, Arctic Ocean Geopolitics Programme, Scott Polar Research Institute, Univ. of Cambridge), Environment and Security in the Arctic
  • March 6, 2009: Dan Saxon (International Criminal Tribunal for the former Yugoslavia), Competing Rights in International Criminal Tribunals
  • March 13, 2009: Gregory H. Fox (Wayne State Univ. - Law ), The Obama Administration and International Law

Zahar: Witness Memory and the Manufacture of Evidence at the International Criminal Tribunals

Alexander Zahar (Griffith Univ. - Law) has posted Witness Memory and the Manufacture of Evidence at the International Criminal Tribunals (in Future Directions in International Criminal Justice, Carsten Stahn & Larissa van den Herik eds., forthcoming). Here's the abstract:
Memory verisimilitude, or at least memory reliability, becomes problematic after a few hours or days. Yet a witness before an international criminal tribunal has had to wait an average of ten years to testify. And it is not just deterioration of memory that happens during this waiting period. The paper summarizes the methods by which shortcomings in witness memory are dealt with at the international criminal tribunals and suggests that international fact-finding is radically deficient. This enterprise built on the quicksand of witness memory and sustained by judicial fixes is conducive to false convictions.

New Issue: Humanitäres Völkerrecht

The latest issue of Humanitäres Völkerrecht (Vol. 21, no. 3, 2008) is out. Contents include:
  • Sergey Sayapin, A Development in International Law or a Misnomer: Who is the "Combatant Adversary" Referred to in Article 8 (2) (e) (ix) of the Rome Statute of the International Criminal Court?
  • Heiko Meiertöns, Keine Gefangenen?: Auf der Suche nach dem "zuständigen Gericht" gemäß Art. 5 der III. Genfer Konvention
  • Simon M. Meisenberg, Die Rechtsprechung des Sondergerichtshofs für Sierra Leone und sein Beitrag zum humanitären Völkerrecht
  • Helmut Kreicker, Der Präsident des Sudan vor dem Internationalen Strafgerichtshof: ein Verstoß gegen das Völkerrecht?: Überlegungen zur völkerrechtlichen Immunität von Staatsoberhäuptern anlässlich des Haftsbefehlsantrages gegen Omar al-Bashir
  • Alexander Breitegger, The Landmark Martić Case and the Inconsistent Treatment of Cluster Munition Use by the Office of the Prosecutor of the ICTY

Monday, January 5, 2009

New Issue: Journal of Private International Law

The latest issue of the Journal of Private International Law (Vol. 4, no. 3, December 2008) is out. Contents include:
  • Jonathan Harris, Understanding the English Response to the Europeanisation of Private International Law
  • Paul L.C. Torremans, Licences and Assignments of Intellectual Property Rights Under the Rome I Regulation
  • C.M.V. Clarkson, Matrimonial Property on Divorce: All Change in Europe
  • Peter Ripley, A Defence of the Established Approach to the Grave Risk Exception in the Hague Child Abduction Convention
  • Ngoc Bich Du, Cross-Border Recognition and Enforcement of Foreign Judgments in Vietnam
  • C.J.S. Knight, The Damage of Damages: Agreements on Jurisdiction and Choice of Law

Conference: Weighing the Facts: Problems in Information Exchange and Presentation of Evidence in International Arbitration

The Permanent Court of Arbitration, the Houston International Arbitration Club, Inc., and the University of Texas School of Law are co-hosting a conference at the Peace Palace, May 14-15, 2009. The topic is "Weighing the Facts: Problems in Information Exchange and Presentation of Evidence in International Arbitration." The program is available here. Here's an overview:
The conference brings together internationally-renowned faculty from Europe, Asia, Latin America and the United States in a special conference focused on law, ethics, and consensus of information exchange and evidence in arbitration. The program combines analysis and practical application of electronic discovery and evidence in international commercial law and international arbitration. The conference concludes with a discussion by general counsel of ExxonMobil, Baker Hughes, and Freshfields, Bruckhaus Deringer LLP.

Bolton & Yoo: Restore the Senate’s Treaty Power

John R. Bolton and John Yoo have an op-ed in today's New York Times entitled "Restore the Senate’s Treaty Power." Here it is:

The Constitution’s Treaty Clause has long been seen, rightly, as a bulwark against presidential inclinations to lock the United States into unwise foreign commitments. The clause will likely be tested by Barack Obama’s administration, as the new president and Secretary of State-designate Hillary Clinton, led by the legal academics in whose circles they have long traveled, contemplate binding down American power and interests in a dense web of treaties and international bureaucracies.

Like past presidents, Mr. Obama will likely be tempted to avoid the requirement that treaties must be approved by two-thirds of the Senate. The usual methods around this constitutional constraint are executive agreements or a majority vote in the House and Senate to pass a treaty as a simple law (known as a Congressional-executive agreement).

Executive agreements have an acknowledged but limited place in our foreign affairs. Congressional-executive agreements are far more troubling. They have evoked scathing attacks by constitutional experts and have been strongly resisted in the Senate, at least so far.

The framers of the Constitution designed the treaty process with a bias against “entangling alliances,” as Thomas Jefferson described them in his first inaugural address. They designated the Senate as the body responsible to protect the interests of the states from being bargained away by the president in deals with foreign nations. The framers required a supermajority to ensure that treaties would reflect a broad consensus and careful, mature decision-making.

America needs to maintain its sovereignty and autonomy, not to subordinate its policies, foreign or domestic, to international control. On a broad variety of issues — many of which sound more like domestic rather than foreign policy — the re-emergence of the benignly labeled “global governance” movement is well under way in the Obama transition.

Candidate Obama promised to “re-engage” and “work constructively within” the United Nations Framework Convention on Climate Change. Will the new president pass a new Kyoto climate accord through Congress by sidestepping the constitutional requirement to persuade two-thirds of the Senate?

Draconian restrictions on energy use would follow. A majority of the Congress would be much easier for Mr. Obama to get than a supermajority of the Senate. A scholar at the Brookings Institution has already proposed that a new president overcome objections to this environmentalists’ holy grail by evading the Treaty Clause.

President George W. Bush resisted many efforts at global governance. But his administration still sometimes fell into the temptation to flout the constitutional requirement of a two-thirds majority in the Senate.

In 2002, the administration considered submitting the Treaty of Moscow, a nuclear arms reduction agreement, for majority approval of Congress. Vice President-elect Joe Biden, who was then the chairman of the Senate Foreign Relations Committee, privately made clear that he would vigorously oppose such an attempt to evade the Senate’s constitutional prerogatives. The administration agreed to submit the agreement as a treaty, and the Moscow agreement cleared the Senate.

We hope the new vice president will not reverse his commitment to the Senate’s constitutional authority. But an administration determined to tie one hand behind America’s back might use Congressional-executive agreements to push the nation all too easily into quixotic and impractical global governance regimes.

President Bill Clinton signed Kyoto, but the Senate in effect rejected it. He also signed the Rome Treaty of 1998 that established an International Criminal Court, which would subject American soldiers and officials to unaccountable international prosecutors and judges for alleged war crimes (including, potentially, the undefined crime of “aggression”). Mr. Clinton did not even send this agreement to the Senate. Mr. Bush “unsigned” it. Mr. Obama might re-sign it and seek approval by only a majority of both houses of Congress.

Other international regimes might restrict America’s freedom of action to defend itself. In 1999, the Senate rejected the Comprehensive Test Ban Treaty, which would have undermined America’s ability to verify the reliability and effectiveness of its nuclear deterrent. Mr. Obama has said he supports ratification. The historical precedents are that major arms control agreements must receive the approval of two-thirds of the Senate.

President Bush, like President Clinton, did not sign a global agreement that would ban antipersonnel land mines, on the grounds that they are a key component of the American defense of South Korea. But his administration has pressed for ratification of the treaty on the law of the sea, which would subject disputes over the free passage of American naval vessels to the jurisdiction of an international maritime court — which the Senate has so far refused to ratify.

If Mr. Obama were to submit either of these agreements for approval by a simple majority of the House and Senate, his actions would pose a serious challenge to American principles of law and democratic governance. Global governance schemes delegate power to independent international organizations to make and enforce laws that would apply domestically, by international bureaucrats who are unaccountable to Congress, the president, American public opinion or the democratic process.

It is true that some multinational economic agreements, like Bretton Woods, the General Agreement on Tariffs and Trade and the North American Free Trade Agreement, went into effect after approval by majorities of Congress rather than two-thirds of the Senate. But international agreements that go beyond the rules of international trade and finance — that involve significant national-security commitments, or that purport to delegate lawmaking and enforcement functions to international organizations, or that could fundamentally alter the American constitutional system of individual rights — should receive the intense scrutiny of the treaty process, regardless of their policy merits.

By insisting on the proper constitutional process for treaty-making, Republicans can join Mr. Obama in advancing a bipartisan foreign policy. They can also help strike the proper balance between the legislative and executive branches that so many have called for in recent years.

New Issue: Revue de droit international de sciences diplomatiques et politiques

The latest issue of the Revue de droit international, de sciences diplomatiques et politiques (Vol. 86, no. 1, Janvier-Mars 2008) is out. Contents include:
  • André Oraison, A propos du conflit franco-mauricien sur le récif de Tromelin (La succession d'Etats sur l'ancienne Isle de Sable)

Sunday, January 4, 2009

Call for Papers: Climate Law Compliance: Cases and Theory

Climate Law Compliance: Cases and Theory, a new peer-reviewed series published by IOS Press, has issued the following call for papers:

Climate Law Compliance: Cases and Theory is a new peer-reviewed series published by IOS Press, Amsterdam. It is the first scholarly journal dedicated to the range of issues that arise from the enforcement of climate-related obligations.

The journal is interested in state compliance with Kyoto commitments, including the case work of the Enforcement Branch under the Protocol’s Compliance Mechanism. This is only one area of interest, as the series will host discussions on compliance at both a more general level (e.g. relating to UNFCCC obligations) and a narrower one (compliance with regional obligations, such as EU mechanisms of legal accountability, compliance with decisions of the CDM EB, and so on).

In order to make climate compliance processes more accessible to a wider audience, each volume will consist of two parts. The first will be case-focused and will reproduce key original documents, such as decisions the Enforcement Branch, alongside independent expert commentary on the cases or specific disputes to which the documents relate. The second part will be devoted to scholarly articles on climate compliance matters generally, including theoretical pieces.

The series is edited by Alexander Zahar under the direction of an editorial board whose members are Steinar Andresen, Jutta Brunnée, Christian Downie, Michael G. Faure, David Freestone, Jon Hovi, René Lefeber, Gerhard Loibl, Larry MacFaul, Jan McDonald, Ronald B. Mitchell, Massimiliano Montini, Sebastian Oberthür, Jacqueline Peel, Marjan G.W.M. Peeters, Melissa A. Perry, Dane Ratliff, Dongli Sang, Olav Schram Stokke, Charlotte Streck, Geir Ulfstein, Jacob Werksman, and Farhana Yamin.

The first volume of the series is scheduled for publication in late 2009.

Climate Law Compliance: Cases and Theory is welcoming submissions of abstracts/ideas for case commentaries and articles, in-progress manuscripts for editorial opinion, and completed manuscripts for peer review (please submit to

For further information, including queries about style and preparation of case commentaries and articles, please contact the editor at