Saturday, March 21, 2009
Friday, March 20, 2009
In 2004, the State Department gathered more than a thousand interviews from refugees in Chad that verified Colin Powell’s U.N. and congressional testimonies about the Darfur genocide. The survey cost nearly a million dollars to conduct and yet it languished in the archives as the killing continued, claiming hundreds of thousands of murder and rape victims and restricting several million survivors to camps. This book for the first time fully examines that survey and its heartbreaking accounts. It documents the Sudanese government’s enlistment of Arab Janjaweed militias in destroying black African communities. The central questions are: Why is the United States so ambivalent to genocide? Why do so many scholars deemphasize racial aspects of genocide? How can the science of criminology advance understanding and protection against genocide? This book gives a vivid firsthand account and voice to the survivors of genocide in Darfur.
The dispute resolution procedures of the World Trade Organization allow sanctions to be imposed when a country is unwilling to bring a WTO-inconsistent trade measure into conformity. Not surprisingly, this form of retaliation often creates as many problems as it solves.
This timely work provides in-depth legal analysis of the procedural and substantive aspects of retaliation under the WTO dispute settlement system with particular reference to relevant rules and case law. It examines the retaliation regime under GATT 1947 and the Dispute Settlement Understanding, as well as the special retaliation regime under the Subsidies and Countervailing Measures Agreement. It includes a case study with respect to the calculation of the level of retaliation in Article 22.6/4.11 arbitration. Finally, it explores the gaps in the current retaliation system with regard to both procedural issues and the matter of efficacy, and analyzes all relevant solutions. In sum, this book is designed to examine the way the WTO retaliation system works and explore possible improvements.
Thursday, March 19, 2009
Treves et al.: Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements
Traditional means of international dispute settlement have proved to be largely ineffective in ensuring the effectiveness of international environmental law. Thus, states are increasingly creating regime-specific systems to control, facilitate and assist the implementation of and compliance with each multilateral environmental agreement.
By bringing together the perspectives of scholars, negotiators and practitioners, this book provides a comprehensive and in-depth analysis of the most advanced of these systems, the so-called “non-compliance mechanisms”, in which a specialized treaty body is entrusted with the task of examining cases of non-compliance by State parties.
It includes a description of each mechanism and an analysis of cross-cutting issues. It also explains how these systems relate to relevant concepts and mechanisms of general international law and, for the first time, of European Union law.
- Ove Bring, Humanitarian law and literature: from Utopia to slaughterhouse-five
- Marco Sassoli, The implementation of international humanitarian law: current and inherent challenges
- I.J. MacLeod & A.P.V. Rogers, The use of white phosphorus and the law of war
- Marten Zwanenburg, The return of the law of occupation
- Current Developments
- Amna Guellai & Enrique Carnero Rojo, International criminal courts round up
- Sarah Finnin, Update on United States military commission
- Gabor Rona, An appraisal of US practice relating to ‘enemy combatants’
- John Borrie, The ‘long year’: emerging international efforts to address the humanitarian impacts of cluster munitions, 2006–2007
Wednesday, March 18, 2009
- United States Supreme Court: Boumediene v. Bush, with introductory note by Julian Davis Mortenson
- United States Supreme Court: Munaf v. Geren, with introductory note by Stephen I. Vladeck
- International Court of Justice: Request for Interpretation of the Judgment in Case Concerning Avena and other Mexican Nationals, with introductory note by Chiara Giorgetti
- International Criminal Tribunal for Rwanda: Prosecutor v. Kanyarukiga—Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, with introductory note by Ruth Frölich
- Supreme Court of Israel: Anonymous v. Israel, with introductory note by Scott Lyons
- United States Court of Appeals for the 11th Circuit: Gandara v. Bennett, with introductory note by Ronald J. Bettauer
- United Nations Security Council Resolution 1822, with introductory note by David P. Stewart
- United Nations Security Council Resolution 1820, with introductory note by Marianne Mollmann
- International Criminal Court: Summary of the Prosecutor’s Application for Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, with introductory note by William Slomanson
- International Court of Justice: Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), with introductory note by David A. Colson and Brian J. Vohrer
- Tito Ballarino, Il Regolamento Roma I: forza di legge, effetti, contenuto
- Hilda Aguilar Grieder, Los contratos internacionales de distribución comercial en el Reglamento Roma I
- Alfonso-Luis Calvo Caravaca & Javier Carrascosa Gonzalez, La Ley aplicable al divorcio en Europa: el futuro Reglamento Roma III
- Maria del Pilar Diago Diago, El comercio internacional de diamantes: sistema de certificación del Proceso Kimberley
- Pietro Franzina, Las relaciones entre el Reglamento Roma I y los convenios internacionales sobre conflictos de leyes en materia contractual
- Antonio Leandro, La legge applicabile alla revocatoria fallimentare nel Regolamento (CE) nº 1346/2000
- Andrés Rodriguez Benot, La exclusión de las obligaciones derivadas del Derecho de familia y sucesiones del ámbito material de aplicación del Reglamento Roma I
- Francisco Martinez Rivas, Traslado internacional de sede social en la Unión Europea: del caso Daily Mail al caso Cartesio. Veinte años no son nada
- Maria Dolores Ortiz Vidal, El caso Grunkin-Paul: notas a la STJUE de 14 de octubre de 2008
- Erik Gartzke & Matthew Kroenig, A Strategic Approach to Nuclear Proliferation
- Matthew Kroenig, Importing the Bomb: Sensitive Nuclear Assistance and Nuclear Proliferation
- Matthew Fuhrmann, Taking a Walk on the Supply Side: The Determinants of Civilian Nuclear Cooperation
- Erik Gartzke & Dong-Joon Jo, Bargaining, Nuclear Proliferation, and Interstate Disputes
- Michael Horowitz, The Spread of Nuclear Weapons and International Conflict: Does Experience Matter?
- Robert Rauchhaus, Evaluating the Nuclear Peace Hypothesis: A Quantitative Approach
- Kyle Beardsley & Victor Asal, Winning with the Bomb
- Alexander H. Montgomery & Scott D. Sagan, The Perils of Predicting Proliferation
Roger O'Keefe (Univ. of Cambridge - Law) will give a talk today at the International Law Association (British Branch)-University College London Faculty of Laws International Law Seminar on "Wartime Destruction and Plunder of Cultural Property: Issues of State Responsibility."
Tuesday, March 17, 2009
It often seems today that no dispute is barred from resolution by arbitration. Even the fundamental question of whether a dispute falls under the exclusive jurisdiction of a judicial body may itself be arbitrable. Arbitrability is thus an elusive concept; yet a systematic study of it, as this book shows, yields innumerable guidelines and insights that are of substantial value to arbitral practice.
Although the book takes the form of a collection of essays, it is designed as a comprehensive commentary on practical issues that emerge from the idea of arbitrability. Fifteen leading academics and practitioners from Europe and the United States each explore different facets of arbitrability always with a perspective open to international developments and comparative evaluation of standards.
The presentation falls into two parts: in the first the focus is on the general features of arbitrability, its rationale and the laws applicable to it. In the second, arbitrability is specifically examined in the context of administrative, criminal, corporate, IP, financial, commercial, and criminal law
This book has its origins in an International Conference on Arbitrability held at Athens in September 2005. Seven papers presented there are here reviewed and updated, and nine others are added.
The subject of the book – arbitrability – is one that is much talked about, but seldom if ever given the in-depth treatment presented here. Arbitrators and other practitioners in the field will welcome the way the analysis moves logically from theory to practice regarding every issue, and academics will recognize a definitive treatment of arbitrability as understood and applied in the settlement of disputes today.
- José B. Acosta Estévez, Método, técnica, sistemática y sectorialización del derecho internacional público
- Mª Ángeles Cano Linares, El derecho internacional humanitario frente al uso de la fuerza como actividad empresarial: ¿el fin de un monopolio?
- María José Cervell Hortal, El derecho internacional y los recursos naturales compartidos
- Daniel Ignacio García San José, La elaboración de derecho internacional más allá del consentimiento estatal: la emergente legalidad internacional de base consensual
- Javier A. González Vega, ¿Colmando los espacios de "no derecho" en el convenio europeo de derechos humanos?: su eficacia extraterritorial a la luz de la jurisprudencia
- Francisco José Pascual Vives, La competencia del centro internacional para el arreglo de las diferencias relativas a inversiones (CIADI) para proteger las inversiones extranjeras realizadas por los particulares: el laudo de 8 de mayo de 2008 dictado por un tribunal del CIADI en el caso Víctor Pey Casado y Fundación Presidente Allende y la República de Chile (caso CIADI nº ARB/98/2)
- Antonio Blanc Altemir, La V Cumbre Unión Europea-América Latina y Caribe: ¿hacia un cambio de método en las relaciones birregionales?
- Rosana Garciandía Garmendia, La aplicación española de las normas de derecho internacional contra la corrupción
- Javier Jordán, Las nuevas insurgencias: análisis de un fenómeno estratégico emergente
- Pablo Zapatero Miguel, Libre comercio y sanciones multilaterales
Monday, March 16, 2009
The Nuremberg trials at the close of World War II were controversial in their day. Advocates saw civilized nations imposing just retribution for acts of depravity; critics saw an exercise of victors' justice, with rules of warfare imposed after the fact. From that divisive history emerged a movement to create a permanent international court in which charges of genocide, war crimes and crimes against humanity could be heard -- and a long debate over the wisdom of the idea. In the 1990s, ad hoc tribunals were created to consider the atrocities in Bosnia and Rwanda. And in 1998, after negotiations in which the Clinton administration played an influential role, the United Nations adopted the Rome Statute creating the International Criminal Court.
President Clinton was never fully satisfied with the result, waiting until the closing days of his administration to sign the treaty and declining to send it to the Senate for ratification. For his part, President Bush not only officially "unsigned" the Rome Statute in 2002 but signed laws passed by the Republican Congress intended to abolish the court -- going so far as to authorize the president to invade any country that detained an American on its behalf.
The 108 countries that have joined the court include most of the world's democracies and U.S. allies; our fellow holdouts include the likes of Russia, China, Iran, North Korea, Sudan, Cuba and Saudi Arabia. The court is currently proceeding with cases against officials from four African countries, and this month, in its first such action against a sitting head of state, it issued an arrest warrant for Sudanese President Omar Hassan Ahmed Bashir on charges of war crimes in Darfur. The warrant was heralded by President Obama, who has said that the United States should join the court.
Obama's position has reopened the debate in this country about how best to protect internationally recognized human rights across nations with varying approaches to enforcement of those rights within their borders. The discussion raises complicated questions and continues to divide people of goodwill, including the members of The Times' editorial board. Indeed, we are so evenly divided that we are departing from our practice of presenting a single, consensus view and instead offering our strongest justifications on both sides of the issue.
The case for
The arguments against joining the International Criminal Court are rooted in fear that Americans might one day face prosecution and judgment by foreigners in The Hague, and insecurity about our own legal and political systems being strong enough to prevent that from happening. But the ICC has jurisdiction only in cases in which a suspect's home government is “unwilling or unable” to investigate or try him itself. The court is designed to try genocidal dictators and war criminals from countries in which the rule of law is nonexistent or the courts are in thrall to the regime. The notion that this could apply to the United States is laughable, yet it was the basis of Bush administration objections.
More specifically, opponents of the court worry that if future American leaders pursue terrorists by bending international and constitutional law to the extent that Bush and former Defense Secretary Donald H. Rumsfeld did, they could be subject to prosecution for war crimes. Yet the Rome Statute sets a high bar for an ICC investigation of leadership crimes -- they must involve a high degree of magnitude and criminal intent, which would protect Bush and Rumsfeld from the charges leveled by all but their harshest critics.
If American leaders were guilty of atrocities, our own lawmakers and courts could be expected to properly investigate and prosecute them, rendering the ICC moot. And if the threat of an ICC investigation makes future American leaders think twice before approving extraordinary rendition of terrorist suspects or torture of prisoners -- actions that deeply compromised this nation's core principles and its moral standing in the world -- so much the better.
Court opponents also make much of the fact that suspects are tried exclusively by judges rather than juries. The reason for this is obvious -- how would the court assemble a jury of Americans to try someone in The Hague? -- and the argument that it should rule out U.S. participation is specious. The United States has long been extraditing citizens to foreign countries for nonjury trials.
There are ways to protect Americans from politicized international prosecution. David Scheffer, lead negotiator for the Clinton administration in the drafting of the Rome Statute, and former Navy Judge Advocate General John D. Hutson wrote a paper last year for the Century Foundation pointing out that many of the countries that have ratified the treaty have added "declarations" to the document. These lay out the terms under which they intend to honor the pact. Among other things, the United States could declare that a panel of legal experts from outside the government (such as retired military lawyers) would have to determine that the U.S. had been unable or unwilling to prosecute its own citizens before they could be surrendered to the court, and that the U.S. would withdraw from the treaty if it determined that ICC judges or prosecutors had become too politically biased to perform their duties fairly. No objections have ever been raised to such declarations.
And there's an added reason for the United States to join now. Countries cooperating with the ICC are considering adding a fourth "crime" to the court's mandate: aggression. The United States could wield far more influence in defining this crime, and making sure it doesn't tie future leaders' hands in the fight against terrorists, as a signatory to the treaty. Obama should sign it, whether Congress is ready to ratify it or not.
The case against
When the United States rejects isolation and exceptionalism, and embraces transnational cooperation, it generally is moving along a progressive path that over the decades has led to mutual respect in the affairs of nations, better stewardship of the planet's resources, the gradual reduction of poverty and, most important, broader recognition of individual rights. But not every international body is necessarily part of that movement.
The International Criminal Court has many of the features that suggest a place in the progressive tradition, such as cross-border cooperation and procedural safeguards. But a closer look shows that the ICC, as it is presently constituted, would undermine, not enhance, the march toward international justice. The United States should not join.
The ICC has little in common with multilateral treaty and trade organizations that govern the conduct of states and deal with goods, finance, fishing rights, carbon emissions, even deployment of military forces. The U.S. can and should countenance a gradual and case-by-case sharing of sovereignty on such issues for the broader good. But none of those organizations purport to have jurisdiction over an individual's life, limb or liberty.
Protecting the fundamental right of the criminally accused to a public trial by a jury of one's peers was a core reason for the American Revolution; it remains one of the primary purposes of our government. The Declaration of Independence cites among the reasons for rebellion against the king of Britain his assertion of power to remove citizens from their justice system and transport them out of the Colonies for trials before special courts with their own rules. That misuse of power is not simply a historical relic; it looms large today as the nation grapples with the Bush administration's attempt to arrest citizens and try them before military tribunals without public jury trials.
We recognize that a government exists at the will of and with the consent of the governed, and therefore the governed implicitly agree to be bound by its criminal laws. International organizations exist with the consent of their member states, so only those governments, and not the individuals, have submitted themselves to the collective will.
The ICC's defenders argue that, in practice, the United States could back out any time one of its citizens is threatened with prosecution. That's an untenable position twice over. First, it accepts the notion that the U.S. should join with its figurative fingers crossed behind its back. That's not multilateral cooperation; that's a farce. And second, criminal justice is meant to protect the accused, especially the unpopular one. The U.S. government must not be permitted to offload criminal defendants to an international court whenever protections such as jury trials become inconvenient.
The issue is not whether other forms of trial are legitimate; Americans are and should be subject to the criminal justice systems of whatever nation in which they are accused of crimes. The issue is whether the United States as a matter of policy should adopt, for the first time, one of those systems as party to an extra-national authority with power over anyone in the world. Our role should be to guarantee jury rights for the accused, not to give up and say that this protection is no longer fundamental because it's inconvenient in this new context.
- Arbitration in the Baltics: Contemporary Issues
- Galina Žukova, Arbitration in Three Baltic States: A Thorny Path of Learning
- Jan Ramberg, What Arbitrators Can and Cannot Do
- Asko Pohla, New Arbitration Legislation in Estonia: Role of State Courts in Arbitral Proceedings
- Inga Kačevska, An Arbitration Agreement in Latvian Arbitration Environment
- Kalvis Torgāns, Possible Solutions to Challenges of Arbitral Awards in Latvia
- Rimantas Simaitis & Renata Beržanskienė, Arbitration in Lithuania: The Matter of Fact
- Nina Vilkova, Arbitration Agreement and its Impact upon the Efficiency of Dispute Resolution in International Commercial Arbitration
- Ieva Kalniņa, Iura Novit Curia: Scylla and Charybdis of International Arbitration?
- Mārtiņš Paparinskis, Barcelona Traction: A Friend of Investment Protection Law
- Jaanika Erne, Conferral of Powers by the Estonian State on International Organisations
- Loreta Šaltinytė, Interpreting an Arbitration Clause under Lithuanian Law of 1993: Svenska Petroleum v. the Government of the Republic of Lithuania
- Rytis Satkauskas, Lithuanian-Latvian Border Arbitration 1920–1921
- Ingrid Wuerth, Medellín: The New, New Formalism?
- Paul B. Stephan, Open Doors
- John T. Parry, A Primer on Treaties and § 1983 after Medellín v. Texas
- Scott W. Lyons, Breach Without Remedy in the International Forum and the Need for Self-Help: The Conundrum Resulting from the Medellín Case
- David D. Caron & Seth Schreiberg, Anticipating the 2009 U.S. "Fairness in Arbitration Act"
- Charles H. Brower, II, Hall Street Assocs. v. Mattel, Inc.: Supreme Court Denies Enforcement of Agreement to Expand the Grounds for Vacatur Under the Federal Arbitration Act
- Véronique Camerer & Christina G. Hioureas, Glamis Gold, Ltd. v. United States of America: A Case Study on Document Production and Privilege in International Arbitration
- Ruth Teitelbaum, Towards a Presumption of Transparency in Investment Arbitration
- Thomas W. Walsh, The UNCITRAL Arbitration Rules and First Options: Failing to Clearly and Unmistakably Evince the Intent to Arbitrate Issues of Arbitrability
Sunday, March 15, 2009
- Navanethem Pillay, Human Rights in United Nations Action: Norms, Institutions and Leadership
- Michael Kirby, Legal Discrimination Against Homosexuals—A Blind Spot of the Commonwealth of Nations?
- Susan Marks, Human Rights and the Bottom Billion
- Tamar Feldman, Indirect Victims, Direct Injury: Recognising Relatives as Victims under the European Human Rights System
- Andreas Dimopoulos, Intellectually Disabled Parents before the European Court of Human Rights and English Courts