A recent dispute involving the suspension of release of a consignment of generic drug in transit from India to Brazil by Dutch Customs raises some important issues for the future of the international intellectual property regime. The dispute is only too timely as some countries resort to bilateralism and Free Trade Agreements for extending intellectual property protection beyond the minimum contained in TRIPS. It provides a classic stage for studying the conflict of interests between developing and developed countries on the issues of access to medicine and standard of protection, and thus deserves closer and independent scrutiny of facts and law. On a cursory glance EC Regulation 1383, which provides for border enforcement of rights in cases of patent infringement, seems to be in consistence with the TRIPS Agreement. A closer analysis, however, reveals that the law, in providing for a TRIPS-Plus standard of protection, may run afoul of Part III, Section IV of the TRIPS Agreement. This conclusion, however, rests on a contextual interpretation, which as this work argues, is provided by the Doha Declaration on Public Health and TRIPS and the subsequent Decision to implement paragraph 6 of the Declaration.
The analysis deals with the interpretation of Articles 51 and 52 of the TRIPS Agreement besides addressing the possibility of using the language of the Agreement itself as providing “ceilings” for maximum protection. The work offers some policy and symptomatic recommendations, but, and perhaps more importantly, shows how the incident serves as another litmus test for testing the efficacy of the intellectual property regime under the TRIPS and the promise of a “balance” the Doha Declaration had promised.
Saturday, May 9, 2009
Friday, May 8, 2009
The AALS Section on International Human Rights invites abstract proposals from all faculty members whose research focuses on human rights. Authors of accepted papers will present at a morning session on Saturday, January 9, 2010, during the annual meeting of the AALS to be held in New Orleans. Deadline for submissions is September 25, 2009. Please email submissions, in Word or PDF format, to Christiana Ochoa at email@example.com.
- Richard W. Hulbert, When the Theory Doesn’t Fit the Facts—A Further Comment on Putrabali
- Reza Mohtashami & Sami Tannous, Arbitration at the Dubai International Financial Centre: A Common Law Jurisdiction in the Middle East
- Gabrielle Kaufmann-Kohler, When Arbitrators Facilitate Settlement: Towards a Transnational Standard
- Simon Crookenden, Correction of the Name of a Party to an Arbitration
- Klaus Peter Berger, The International Arbitrator's Dilemma - Transnational Procedure Versus Home Jurisdiction: A German Perspective
- Abdulrahman Baamir & Ilias Bantekas, Saudi Law as Lex Arbitri: Evaluation of Saudi Arbitration Law and Judicial Practice
- Matthew D. Slater, On Annulled Arbitral Awards and the Death of Chromalloy
The Compact Clause prohibits U.S. states from making “any Agreement or Compact with another State, or with a foreign Power” absent congressional consent. No one, however, has ever studied the Clause’s application to agreements by foreign powers with U.S. states (FSAs). The conventional wisdom views FSAs as infrequent, unimportant, and otherwise identical to those interstate compacts for which the Supreme Court has opined congressional consent is generally unnecessary.
My article explains why the conventional wisdom is wrong on all counts. For the first time, I present a typology of 340 FSAs and show how they are increasing in both number and importance. The states have simply not reported their practice to the federal government.
More importantly, my article introduces the idea that the Constitution contains not one Compact Clause, but two - one for interstate compacts and another for FSAs. Using text, history, doctrine, function, and structure, I demonstrate how Congress can dictate for itself when states must obtain congressional approval of FSAs, independent of the interstate compact doctrine devised by the Court. In doing so, my work aims to demonstrate that the Court is not the only actor that can construct constitutional meaning; Congress has its own powers to interpret the constitutional text outside the courtroom. Ultimately, my article shows that, despite some costs, a Foreign Compact Clause will benefit states, their foreign partners, the federal government, and even our understanding of federalism as a cooperative venture, rather than just a competitive one.
Bowden, Charlesworth, & Farrall: The Role of International Law in Rebuilding Societies after Conflict
International law can create great expectations in those seeking to rebuild societies that have been torn apart by conflict. For outsiders, international law can mandate or militate against intervention, bolstering or undermining the legitimacy of intervention. International legal principles promise equality, justice and human rights. Yet international law’s promises are difficult to fulfil. This volume of essays investigates the phenomenon of post-conflict state-building and the engagement of international law in this enterprise. It draws together original essays by scholars and practitioners who consider the many roles international law can play in rehabilitating societies after conflict. The essays explore troubled zones across the world, from Afghanistan to Africa’s Great Lakes region, and from Timor-Leste to the Balkans. They identify a range of possibilities for international law in tempering, regulating, legitimating or undermining efforts to rebuild post-conflict societies.Contents include:
- Brett Bowden, Hilary Charlesworth, & Jeremy Farrall, Introduction
- Outi Korhonen, The 'state-building enterprise': legal doctrine, progress narratives and managerial governance
- Nehal Bhuta, Democratisation, state-building and politics as technology
- Peter G. Danchin, International law, human rights and the transformative occupation of Iraq
- Brett Bowden & Hilary Charlesworth, Defining democracy in international institutions
- William Maley, Democracy and legitimation: challenges in the reconstitution of political processes in Afghanistan
- Jeremy Farrall, Impossible expectations? The UN security council's promotion of the rule of law after conflict
- Laura Grenfell, Legal pluralism and the challenge of building the rule of law in post-conflict states – a case study of Timor-Leste
- Helen Durham, From paper to practice: the role of treaty ratification post-conflict
- Annemarie Devereux, Selective universality? Human rights accountability of the UN in post-conflict operations
- Amy Maguire, Security starts with the law: the role of international law in the protection of women's security post-conflict
- Phil Clark, Grappling in the great lakes: the challenges of international justice in Rwanda, the Democratic Republic of Congo and Uganda
- John Braithwaite, Conclusion: hope and humility for weavers with international law
Thursday, May 7, 2009
Allen: The UN Declaration on the Rights of Indigenous Peoples: Towards a Global Legal Order on Indigenous Rights?
The adoption of the Declaration on the Rights of Indigenous Peoples (‘DRIP’) by the UN General Assembly in September 2007 was a momentous occasion. Indigenous representatives and scholars have consistently claimed the DRIP on behalf of the international legal project (and participating States have been mindful of these claims). This essay examines the status of the DRIP in international law. It assesses radical claims that its provisions have contributed to the emergence (or consolidation) of customary international law concerning the rights of indigenous peoples. It also considers the implications of the DRIP’s ‘softness’ from a normative perspective and at the level of adjudication. While this essay recognizes the DRIP’s immense political value as an authoritative guide to the formulation of national legislation and policies on indigenous issues it questions the extent to which international law has (or could have) a direct role in relation to securing recognition and rights for indigenous peoples within States.
Recent years have seen unprecedented interactions among three areas of law: Human Rights Law, International Law, and National Security Law. The three AALS Sections that focus on each area of law will cosponsor a call-for-papers session exploring these interactions at the AALS' January 2010 annual meeting in New Orleans, Louisiana. A Selection Committee comprising one officer of each section welcomes abstract submissions from all scholars, with preference given to authors who belong to at least one of these AALS sections. The Committee also will give preference to papers that highlight the cross-section among two or more of these fields, and will endeavor to have a cross-section of such cross-currents represented at the session. Deadline for submission, of abstracts no longer than five double-spaced pages, is Friday, September 18, 2009; please e-mail the submission, in Word or PDF format, to Michael Kelly at MichaelKelly@creighton.edu.
Symposium: Treaty Regimes in Practice: Domestic Implementation of International Law on Sustainable Development
Wednesday, May 6, 2009
This symposium essay identifies and explains Congress’s inactivity in exercising its Compact Clause power in the foreign context. The Constitution prohibits U.S. states from concluding treaties, alliances or confederations, and gives Congress the power to approve “any Agreement or Compact” by a U.S. state with a foreign power. Congress, however, has consented to a mere handful of foreign compacts, even though U.S. states have concluded hundreds of agreements with foreign governments in recent years. How has the Compact Clause become so dormant? I argue that Congress’s inaction is a function of judicial and executive action. The Supreme Court’s rulings have greatly limited when Congress must consent to foreign compacts, suggesting the states have their own power to make many foreign agreements free from congressional oversight or approval. At the same time, the Executive has come to police the constitutional propriety of U.S. state agreements with foreign governments.
This essay focuses on the informational, functional and structural challenges of having the Executive act as a surrogate for Congress in overseeing state agreements abroad. First, executive oversight has done little to remedy a growing informational deficit on what agreements U.S. states are making with foreign governments. Second, even if the Executive knew what the states were doing, it lacks the functional capacity to control such state activity. Third, having the Executive interpret for Congress the scope of Congress’s power raises separation of powers concerns. Taken together, these problems suggest a need for closer scrutiny of U.S. state practice overseas and a more robust congressional role in monitoring and approving foreign compacts.
- Jason Lyall, Does Indiscriminate Violence Incite Insurgent Attacks?: Evidence from Chechnya
- Daphna Canetti-Nisim, Eran Halperin, Keren Sharvit, & Stevan E. Hobfoll, A New Stress-Based Model of Political Extremism: Personal Exposure to Terrorism, Psychological Distress, and Exclusionist Political Attitudes
- Ely Ratner, Reaping What You Sow: Democratic Transitions and Foreign Policy Realignment
- Francisco Herreros & Henar Criado, Pre-emptive or Arbitrary: Two Forms of Lethal Violence in a Civil War
- Isak Svensson, Who Brings Which Peace?: Neutral versus Biased Mediation and Institutional Peace Arrangements in Civil Wars
- Roger B. Myerson, A Field Manual for the Cradle of Civilization: Theory of Leadership and Lessons of Iraq
This essay, a chapter in a book on international investment law and comparative public law forthcoming from Oxford University Press, reviews the applicability of international investment law to tax administration and enforcement. It begins with a review of the principles of international investment law that are relevant to the assessment and enforcement of municipal tax imposts. It then explores tax administration practice in a variety of states. This overview seeks to achieve two results. First, as an inductive matter it use state practice to sketch a baseline of common, and presumably acceptable, administrative practices. An investor normally should be deemed to expect a state to employ administrative practice that reflects the exigencies of tax assessment and collection and the reasonable need of the administrator for flexibility and dispatch. Second, the review highlights ways in which common practices can be perverted to impair investments, rather than to advance the appropriate revenue goals of the state.
At the end of the day, the line between acceptable discretion and perversion of tax administration to get around obligations to foreign investors remains blurred and debatable. This chapter represents a first step at illuminating the problem and the countervailing arguments. It concludes with a modest prospectus for future research.
Conference: The Relationship between International Humanitarian Law and International Human Rights Law
Tuesday, May 5, 2009
Within hours of the 9/11 attacks in the United States, President George W. Bush declared “a global war on terrorism”. Experts around the world assumed this declaration was a rallying cry, a rhetorical device to galvanize the nation to serious action. By November 2001, however, the evidence began to mount that the President was ordering actions that could only be lawful in a de jure armed conflict: targeting to kill without warning, indefinite detention without trial, and search and seizure on the high seas without consent. It was difficult to criticize these actions on the basis of international law, however, given that international law contained no widely accepted definition of armed conflict. By May 2005, the International Law Association determined that there was a pressing need for a report on the meaning of armed conflict supported by international law. The Use of Force Committee presented its Initial Report on the Meaning of Armed Conflict in International Law at the Rio de Janeiro biennial meeting of the ILA. The Report concludes that all armed conflicts have as minimum two necessary characteristics: 1.) the presence of organized groups 2.) engaged in intense armed fighting. The Report indicates that while the United States has been engaged in an armed conflict in Afghanistan and in Iraq since 9/11, it has not been engaged in a global armed conflict. The Initial Report will be expanded for presentation in final form in 2010 at The Hague biennial meeting.
- Jean-Frédéric Morin, Multilateralizing TRIPs-Plus Agreements: Is the US Strategy a Failure?
- Pamela J. Smith, Omar B. Da'ar, Kevin H. Monroe, Fabricio X. Nunez, & Charlotte J. Tuttle, How Do Copyrights Affect Economic Development and International Trade?
- Prabhash Ranjan, Recent Developments in India's Plant Variety Protection, Seed Regulation and Linkages with UPOV's Proposed Membership
- Shigeru Oda, On Launching the Japanese Yearbook of International Law
- Hisashi Owada, Reconceptualization of the International Rule of Law in a Globalizing World
- The Law of the Sea: Enduring Principles and Contemporary Challenges
- Atsuko Kanehara, Challenging the Fundamental Principle of the Freedom of the High Seas and the Flag State Principle Expressed by Recent Non-flag State Measures on the High Seas
- Moritaka Hayashi, International Measures to Combat Illegal, Unreported and Unregulated (IUU) Fishing and Japan
- Akio Morita, Piracy Jure Gentium Revisited - For Japan’s Future Contribution
- Shigeki Sakamoto, Japan-China Dispute Over Maritime Boundary Delimitation - From a Japanese Perspective
- Haiwen Zhang, Legal Issues Concerning the East China Sea Delimitation - A Chinese Perspective on the Sino-Japanese the East China Sea Dispute
- Rüdiger Wolfrum, The Settlement of Disputes Before the International Tribunal for the Law of the Sea - A Progressive Development of International Law or Relying on Traditional Mechanisms?
- Naoya Okuwaki, The Basic Act on Ocean Policy and Japan’s Agendas for Legislative Improvement
- Divergence and Unification of Choice of Law Rules From a Global Perspective
- Toshiyuki Kono, Comparative Analysis of Recent Developments in Private International Law in Japan and Europe from a Japanese Perspective
- Peter Mankowski, The New Japanese Private International Law Act from a European Perspective
- Ronald A. Brand & Tabitha Fish, An American Perspective on the New Japanese Act on General Rules for Application of Laws
- Huang Renting, A Comparative Law Analysis on Some Recent Developments in the Conflict of Law Rules of Contract in Japan and China
- Moonsook Kim, On the Korean Private International Law
- Yoshiaki Nomura, Harmonization and Diversification of Contract Conflicts
- Accession of Japan to the International Criminal Court
- Kyo Arai, Akira Mayama, & Osamu Yoshida, Japan’s Accession to the ICC Statute and the ICC Cooperation Law
- Kanako Takayama, Participation in the ICC and the National Criminal Law of Japan
- Yasushi Masaki, Japan’s Entry to the International Criminal Court and the Legal Challenges It Faced
- Special Lecture
- Shigeru Oda, International Court of Justice: Its Myth and Reality
- U.S. District Court for the District of Oregon: Al Haramain Islamic Foundation, Inc., with introductory note by Bruce Zagaris
- House of Lords: EM (Lebanon) v. Sec’y of State for the Home Dep’t, with introductory note by Valentina Azarov
- ICSID: Micula et al. v. Romania, with introductory note by Christina Knahr
- ICSID: Desert Line Projects LLC v. Republic of Yemen, with introductory note by Eckhard R. Hellbeck
- United Nations Security Council: Piracy Resolutions 1816, 1846 and 1851, with introductory note by Jane G. Dalton, J. Ashley Roach, and John Daley
- International Criminal Court: Decision on the Release of Thomas Lubanga Dyilo - Appeals Chamber Judgment, with introductory note by Michela Miraglia
- International Criminal Tribunal for Rwanda: Prosecutor v. Munyakazi, with introductory note by Ruth Frölich
- General Assembly Resolution Requesting International Court of Justice Advisory Opinion on Kosovo’s Declaration, and Related Documents, with introductory note by John Cerone
- U.S. District Court for the District of Columbia: Boumediene v. Bush, with introductory note by Robert M. Chesney
Monday, May 4, 2009
Le présent ouvrage aborde un sujet qui n’a pas encore fait l’objet d’étude approfondie de la part des spécialistes du droit international ou de la politique internationale.
Il s’agit de la pratique du Conseil de sécurité qui consiste à adresser directement des recommandations ou des injonctions aux entités non étatiques (organisations intergouvernementales et non gouvernementales, sociétés commerciales privées nationales et multinationales, mouvements rebelles, partis politiques, individu et autres organisations sociales) sans passer par les États membres qui, en principe, sont les seuls à être liés par les dispositions de la Charte de l’ONU qu’ils ont ratifiée.
Cette pratique soulève plusieurs questions sur la manière dont le Conseil de sécurité interprète et exerce les pouvoirs qu’il tient de la Charte dans l’accomplissement de sa mission de maintien de la paix et de la sécurité internationales. Cette pratique est-elle conforme à la Charte et au droit international? En s’adressant directement aux ressortissants des États membres, le Conseil de sécurité est-il devenu un gouvernement mondial? L’ouvrage procède à une analyse approfondie sur le plan factuel et juridique de la pratique indiquée ci-dessus et ouvre de nouvelles perspectives d’analyse pour comprendre l’évolution du droit des Nations Unies et des relations internationales dans le monde contemporain.
- Paul Mahoney, A European Judicial Training Institute on Human Rights
- Ian Loveland, A Tale of Two Trespassers: Reconsidering the Impact of the Human Rights Act on Rights of Residence in Rented Housing: Part One
- Marton Varju, Transition as a Concept of European Human Rights Law
- Catherine Dupré, Unlocking Human Dignity: Towards a Theory for the 21st Century
- Matthew Smith, The Adjudicatory Fact-finding Tools of the European Court of Human Rights
- Kate Beattie, S and Marper v United Kingdom: Privacy, DNA and Crime Prevention
- Md. Rizwanul Islam and Shawkat Alam, Preferential Trade Agreements and the Scope of GATT XXIV, GATS V and the Enabling Clause: An Appraisal of GATT/WTO Jurisprudence
- Francesco Messineo, The House of Lords in Al-Jedda and Public International Law: Attribution of Conduct to Un-Authorized Forces and the Power of the Security Council to Displace Human Rights
- Thomas Buergenthal, The Contemporary Significance of International Human Rights Law
- Jörg Kammerhofer, Kelsen - Which Kelsen? A Reapplication of the Pure Theory to International Law
- Richard Collins, Constitutionalism as Liberal-Juridical Consciousness: Echoes from International Law's Past
- John R. Morss, The Legal Relations of Collectives: Belated Insights from Hohfeld
- Hague International Tribunals: International Court of Justice
- Marko Milanović, State Responsibility for Acts of Non-state Actors: A Comment on Griebel and Plücken
- Hague International Tribunals: International Criminal Court
- Ines Peterson, The Natural Environment in Times of Armed Conflict: A Concern for International War Crimes Law?
- Current Legal Developments
- Maziar Jamnejad & Michael Wood, The Principle of Non-intervention
Brand: Arbitration or Litigation? Choice of Forum After the 2005 Hague Convention on Choice of Court Agreements
The possibility of wide ratification of and accession to the 2005 Hague Convention on Choice of Court Agreements presents important issues for those drafting international commercial contracts. Transactions lawyers have rather easily justified the inclusion of arbitration agreements in international commercial contracts because the New York Arbitration Convention insures both compliance with the agreement to arbitrate and the recognition and enforcement of any resulting arbitral award. When the Hague Convention becomes effective in a significant number of states, choice of court clauses will be more easily enforced, and court judgments will more easily recognized in other states. Thus, the choice between arbitration and litigation will hinge on the real differences between these two dispute settlement options, and not merely on the fact that one is more easily enforced than the other. This article compares the choices for both private parties and states under the Hague Convention with those existing under the New York Arbitration Convention.
Sunday, May 3, 2009
For almost three decades the United States has played a central role in discouraging and sometimes blocking the development of the concept of economic, social and cultural rights, particularly in the context of the international human right regime. US opposition has not, however, followed a single unchanging course and this article traces the historical evolution of the relevant policy from 1945 through 2008. It concludes by advocating a policy of constructive engagement in relation to these rights on the part of the new administration.