Symposium: Process and Procedure in WTO Dispute Settlement

The latest issue of the Cornell International Law Journal (Vol. 42, no. 1, Winter 2009) contains a symposium on "Process and Procedure in WTO Dispute Settlement." Contents include:

• Yasuhei Taniguchi, The WTO Dispute Settlement as Seen by a Proceduralist
• John J. Barcelo III, Burden of Proof, Prima Facie Case and Presumption in WTO Dispute Settlement
• Andrew T. Guzman, Determining the Appropriate Standard of Review in WTO Disputes
• Joost Pauwelyn & Luis Eduardo Salles, Forum Shopping Before International Tribunals: (Real) Concerns, (Im)Possible Solutions
• William J. Davey, Compliance Problems in WTO Dispute Settlement

New Issue: Columbia Journal of Transnational Law

The latest issue of the Columbia Journal of Transnational Law (Vol. 47, no. 2, 2009) is out. Contents include:

• Ángel R. Oquendo, Upping the Ante: Collective Litigation in Latin America
• Michael N. Schmitt, Human Shields in International Humanitarian Law

Cogan: Representation and Power in International Organization: The Operational Constitution and Its Critics

ILR's editor Jacob Katz Cogan (Univ. of Cincinnati - Law) has posted Representation and Power in International Organization: The Operational Constitution and Its Critics (American Journal of International Law, forthcoming). Here's the abstract:

There is nothing more fundamental to or characteristic of a constitutional system than the techniques it adopts and employs for the selection of its decision makers, be they executive, legislative, or judicial officials. Such techniques can be based on a variety of principles and can be codified using a number of different forms. In the international system, we have a plethora of possible representative principles – those that treat all States the same, giving them each an equal vote (the sovereign equality principle); those that treat States or groups of States differently and allocate representation on the basis of their relative wealth, military power, amount of exports and imports, or some other distinctive characteristic or interest (the differential responsibilities principle); and those that prioritize region and divvy up positions accordingly (the regionalism principle). We also have a wide array of possible forms for implementing those principles – treaties, resolutions, decisions, and understandings, among many others. In the post-War world, there evolved an operational constitution of representation in which formal and informal arrangements together were employed to reconcile the conflicting principles and interests in play. Though sometimes moderating regional tensions, the operational constitution most often rewarded power – financial, trade, political, military, or otherwise – in order to maintain effective international organization.

This operational regime is currently under stress in two distinct ways. It is being assailed on its own terms as unreflective of contemporary power dynamics. Challenges to the composition of the Security Council and pressure to reallocate voting rights in the International Monetary Fund (IMF) and World Bank are the best examples of this. The operational regime is also being criticized on a more fundamental level by those who would do away with informality and preferences altogether. We see this in the attempt to wrest away the “rights” of the United States and Europe to appoint the heads of the IMF and World Bank. These two critiques of the operational constitution are moves to create an international system that works on radically different terms from that which has existed for the past sixty years. The Article concludes by considering the future of the operational constitution in light of these challenges.

New Issue: Review of European Community & International Environmental Law

The latest issue of the Review of European Community & International Environmental Law (Vol. 18, no. 1, April 2009) is out. Contents include:

• Articles on the Precautionary Principle
• Nicolas de Sadeleer, The Precautionary Principle as a Device for Greater Environmental Protection: Lessons from EC Courts
• Jacqueline Peel, Interpretation and Application of the Precautionary Principle: Australia's Contribution
• Arie Trouwborst, The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages
• Rosemary Lyster & Eric Coonan, The Precautionary Principle: A Thrill Ride on the Roller Coaster of Energy and Climate Law
• Caroline E. Foster, Precaution, Scientific Development and Scientific Uncertainty under the WTO Agreement on Sanitary and Phytosanitary Measures
• Dayna Nadine Scott, Testing Toxicity: Proof and Precaution in Canada's Chemicals Management Plan
• General Articles
• Veit Koester, The Compliance Mechanism of the Cartagena Protocol on Biosafety: Development, Adoption, Content and First Years of Life
• Dayuan Xue & Lijie Cai, China's Legal and Policy Frameworks for Access to Genetic Resources and Benefit-Sharing from their Use
• Case Note
• Robin Kundis Craig, The Military and the Environment in the USA: Exemptions, Injunctions and Winter v. Natural Resources Defense Council

New Issue: Mealey's International Arbitration Report

The latest issue of Mealey's International Arbitration Report (Vol. 24, no. 5, May 2009) is out.

Horn & Mavroidis: Burden of Proof in Environmental Disputes in the WTO: Legal Aspects

Henrik Horn (Research Institute of Industrial Economics (IFN)) & Petros C. Mavroidis (Columbia Univ. - Law) have posted Burden of Proof in Environmental Disputes in the WTO: Legal Aspects (European Energy and Environmental Law Review, Vol. 18, No. 2, pp. 112-140, 2009). Here's the abstract:

This paper discusses allocation of burden of proof in environmental disputes in the WTO system. Besides laying down the natural principles that (i) the complainant carries the burden to (ii) make a prima facie case that its claim holds, WTO adjudicating bodies have said little of more general nature. The paper therefore examines the case law of relevance to environmental policies, to establish the rules concerning burden of proof that are likely to be applied in such disputes. Evaluating this case law, the paper makes two observations,: First, in cases submitted under the GATTWTO, adjudicating bodies have committed errors regarding the required amount of evidence (the burden of persuasion); and second, such errors, as well as errors concerning the determination of the party to carry the burden of providing this evidence (the burden of production), have been committed in disputes submitted under the TBT/SPS Agreements. These errors largely seem attributable to the general absence of methodology regarding the interpretation of some key substantive provisions featuring in the three Agreements.

Raustiala: Does the Constitution Follow the Flag?

Kal Raustiala (Univ. of California, Los Angeles - Law) has published Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law (Oxford Univ. Press 2009). Here's the abstract:

The Bush Administration has notoriously argued that detainees at Guantanamo do not enjoy constitutional rights because they are held outside American borders. But where do rules about territorial legal limits such as this one come from? Why does geography make a difference for what legal rules apply? Most people intuitively understand that location affects constitutional rights, but the legal and political basis for territorial jurisdiction is poorly understood. In this novel and accessible treatment of territoriality in American law and foreign policy, Kal Raustiala begins by tracing the history of the subject from its origins in post-revolutionary America to the Indian wars and overseas imperialism of the 19th century. He then takes the reader through the Cold War and the globalization era before closing with a powerful explanation of America's attempt to increase its extraterritorial power in the post-9/11 world. As American power has grown, our understanding of extraterritorial legal rights has expanded too, and Raustiala illuminates why America's assumptions about sovereignty and territory have changed. Throughout, he focuses on how the legal limits of territorial sovereignty have diminished to accommodate the expanding American empire, and addresses how such limits ought to look in the wake of Iraq, Afghanistan, and the war on terror. A timely and engaging narrative, Does the Constitution Follow the Flag? will change how we think about American territory, American law, and-ultimately-the changing nature of American power.

New Volume: Yearbook on International Investment Law & Policy

The Yearbook on International Investment Law & Policy, 2008-2009 is out. Contents include:

• Persephone Economou, John H. Dunning, & Karl P. Sauvant, Trends and Issues in International Investment
• Peter Muchlinski, Trends in International Investment Agreements: Balancing Investor Rights and the Right to Regulate. The Issue of National Security
• Ian A. Laird & Borzu Sabahi, Trends in International Investment Disputes: 2007 in Review
• Albert Bressand, Foreign Direct Investment in the Oil and Gas Sector: Recent Trends and Strategic Drivers
• Karl P. Sauvant, Driving and Countervailing Forces: A Rebalancing of National FDI Policies
• Patrick Juillard, The Law of International Investment: Can the Imbalance be Redressed?
• Kenneth J. Vandevelde, A Comparison of the 2004 and 1994 U.S. Model BITs: Rebalancing Investor and Host Country Interests
• Stanimir A. Alexandrov & Joshua M. Robbins, Proximate Causation in International Investment Disputes
• Charles H. Brower, II, Obstacles and Pathways to Consideration of the Public Interest in Investment Treaty Disputes
• José E. Alvarez & Kathryn Khamsi, The Argentine Crisis and Foreign Investors: A Glimpse into the Heart of the Investment Regime
• Andrea K. Bjorklund, Economic Security Defenses in International Investment Law
• Thomas W. Wälde, Improving the Mechanisms for Treaty Negotiation and Investment Disputes: Competition and Choice as the Path to Quality and Legitimacy

Berman: Federalism and International Law Through the Lens of Legal Pluralism

Paul Schiff Berman (Arizona State Univ. - Law) has posted Federalism and International Law Through the Lens of Legal Pluralism (Missouri Law Review, Vol. 73, p. 1151, 2008). Here's the abstract:

Sovereignty has long been the dominant lens through which we view both federalism and international law. From the perspective of sovereignty, both federalism and international law are primarily about drawing clear boundaries and demarcations between separate, autonomous power centers. Recently, however, a group of scholars have embraced a more pluralist approach to both American federalism and international law. They have touted the important virtues of jurisdictional redundancy and inter-systemic governance models in which multiple legal and regulatory authorities weigh in regarding the same acts and actors. And they argue that such jurisdictional redundancies are not just a necessary accommodation to the reality of a world of multiple authority; they may actually be beneficial. Such benefits include a greater possibility for error correction, a more robust field for norm articulation, and a larger space for creative innovation. Moreover, we might think that when decisionmakers are forced to consider the existence of other possible decisionmakers they will tend to adopt, over time, a more restrained view of their own power, seeing themselves as part of a larger tapestry of decisionmaking in which they are not the only potentially relevant voice. Indeed, pluralists recognize that what constitutes the appropriate spheres for “local,” “national,” and “international” regulation and adjudication changes over time and should not be essentialized.

To illustrate how a pluralist approach might work, I discuss Medellín v. Texas, in which the United States Supreme Court intervened in a dispute among the International Court of Justice, the Bush administration, and the State of Texas regarding the appropriate role of the Vienna Convention on Consular Relations in a state capital murder case. Although the Supreme Court majority emphasized the need to delineate clear, non-overlapping spheres of international, national, and state authority, I draw on the insights of legal pluralism to proffer a more flexible approach to the interaction of multiple sources of law implicated by the case.

Talmon: The Various Control Tests in the Law of State Responsibility and the Responsibility of Outside Powers for Acts of Secessionist Entities

Stefan Talmon (Univ. of Oxford - Law) has posted The Various Control Tests in the Law of State Responsibility and the Responsibility of Outside Powers for Acts of Secessionist Entities (International and Comparative Law Quarterly, forthcoming). Here's the abstract:

In August 2008, Georgia instituted proceedings against the Russian Federation before the International Court of Justice (ICJ) to establish its international responsibility for alleged acts of racial discrimination against the ethnic Georgian population in South Ossetia and Abkhazia by ‘the de facto South Ossetian and Abkhaz separatist authorities [...] supported by the Russian Federation’. In order to establish the international responsibility of an outside power for the internationally wrongful conduct of a secessionist entity, it must be shown, inter alia, that the acts or omissions of the secessionist entity are attributable to the outside power. International tribunals usually determine the question of attribution on the basis of whether the authorities of the secessionist entity were ‘controlled’ by the outside power when performing the internationally wrongful conduct. Attribution thus becomes a question of how one defines ‘control’. The test of control of authorities and military forces of secessionist entities has become perhaps the most cited example of the fragmentation of international law. The ICJ, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, and the European Court of Human Rights have all developed and applied their own tests in order to establish whether a secessionist entity has been ‘controlled’ by an outside power. There is a lot of confusion about the various tests, usually referred to as the ‘effective control’, ‘overall control’ and ‘effective overall control’ tests. This article sets out the various control tests, their requirements and areas of application, and asks which test or tests should be applied to attribute the internationally wrongful conduct of a secessionist entity to an outside power.

Workshop: Goodman

Ryan Goodman (Harvard Univ. - Law) will give a talk today at the Lauterpacht Centre for International Law Lecture Series on "Socializing States - Promoting Human Rights through International Law."

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 9, no. 2, 2009) is out. Contents include:

• James Meernik & Rosa Aloisi, I Do Declare: Politics, Declarations and the International Criminal Court
• Kate Gibson, An Uneasy Co-existence: The Relationship Between Internationalised Criminal Courts and Their Domestic Counterparts
• Lisa Cherkassky, Genocide: Punishing a Moral Wrong
• Karan Lahiri, Rwanda's 'Gacaca' Courts A Possible model for local Justice in International Crime?
• Tarik Abdulhak, Building Sustainable Capacities - From an International Tribunal to a Domestic War Crimes Chamber for Bosnia and Herzegovina
• Mark Chadwick, Modern Developments in Universal Jurisdiction: Addressing Impunity in Tibet and Beyond
• Mark Klamberg, International Criminal Law in Swedish Courts: The Principle of Legality in the Arklöv Case
• Robert Schaeffer, The Audacity of Compromise: The UN Security Council and the Pre-conditions to the Exercise of Jurisdiction by the ICC with Regard to the Crime of Aggression

Benvenisti & Downs: Court Cooperation, Executive Accountability and Global Governance

Eyal Benvenisti (Tel Aviv Univ. - Law) & George W. Downs (New York Univ. - Political Science) have posted Court Cooperation, Executive Accountability and Global Governance (New York University Journal of International Law and Politics, forthcoming). Here's the abstract:

It is widely acknowledged that the regulatory power that globalization has transferred to international organizations has largely been vested in the executive branches of a few powerful states that were the system’s principal architects. The combination of such overly concentrated executive power and the international system’s relative lack of structural checks and balances that safeguard democratic deliberation and human rights in domestic settings should be an important source of concern for those worried about democratic deficit at the global level. Of particular concern is the fact that judicial oversight, the principal structural check on executive power at the international level, remains very limited. Even those international tribunals with relatively broad mandates, like the International Court of Justice, possess far less independence than their domestic counterparts and the international judicial system is more fragmented and less hierarchical than that in most democracies. In this essay we argue that progress in containing executive power via judicial review is still possible, but that it is likely to be driven primarily from below by national court-led process of inter-judicial coordination that could eventually involve both national courts and international tribunals.

New Issue: International Criminal Justice Review

The latest issue of the International Criminal Justice Review (Vol. 19, no. 2, June 2009) is out. Contents include:

• John Winterdyk, Genocide: International Issues and Perspectives Worthy of Criminal Justice Attention
• John Quigley, Genocide: A Useful Legal Category?
• Caroline Fournet, The Universality of the Prohibition of the Crime of Genocide, 1948-2008
• Marianne L. Wade, Genocide: The Criminal Law between Truth and Justice
• John R. Cencich, International Criminal Investigations of Genocide and Crimes Against Humanity: A War Crimes Investigator's Perspective
• Augustine Brannigan & Nicholas A. Jones, Genocide and the Legal Process in Rwanda: From Genocide Amnesty to the New Rule of Law
• Catrien Bijleveld, Aafke Morssinkhof, & Alette Smeulers, Counting the Countless: Rape Victimization During the Rwandan Genocide

New Issue: World Arbitration and Mediation Review

The latest issue of the World Arbitration and Mediation Review (Vol. 2, no. 4, 2008) is out. Contents include:

• 19th Annual Workshop of the Institute for Transnational Arbitration - "Damages in International Arbitration: Strategies, Techniques & Presentation"
• David D. Caron, Introduction to the Workshop
• Stephen Jagusch, Introduction to Act I
• Act I: Reactions to Award on Liability and Engaging Experts
• William W. (Rusty) Park, Keynote Address: Framing the Case on Quantum
• Andrea K. Bjorklund, Introduction to Act II
• Act II: Preparing for the Quantum Hearing
• Lucy Reed, Luncheon Address: Less Is More, More or Less
• Claudia T. Salomon, Introduction to Act III
• Act III: Hearing on Quantum
• Claudia T. Salomon, Introduction to Act IV
• Act IV: Cost Submissions and the Tribunal's Deliberations
• Closing Remarks
• Jeffrey Sullivan, Strategies, Techniques & Presentation
• Manuel A. Abdala, Glossary of Terms Used in the Assessment of Damages in International Arbitration
• Seem Maleh & Tracy Matlock, ITA Services and Events Scoreboard of Adherence to Transnational Arbitration Treaties, as of January 1, 2009

New Volume: Australian International Law Journal

The latest volume of the Australian International Law Journal (Vol. 15, 2008) is out. Contents include:

• Damien van der Toorn, Attribution of Conduct by State Armed Forces Participating in UN-authorised Operations: The Impact of Behrami and Al-Jedda
• Emily Crawford, Blurring the Lines between International and Non-International Armed Conflicts: The Evolution of the Customary International Law Applicable in Internal Armed Conflicts
• Lionel Nichols, David Hicks: Prisoner of War or Prisoner of the War on Terror?
• Robert Dubler, What Is in A Name? A Theory of Crimes against Humanity
• Clara Flensbad, Strengthening the Rule of Law in the Pacific through International Crime Cooperation
• Dikdik Mohamad Sodik, Non-Legal Binding International Fisheries Instruments and Measures to Combat Illegal, Unreported and Unregulated Fishing
• Jessica Selby, Ending Abusive and Exploitive Child Labour through International Law and Practical Action
• Rebecca Young, Justiciable Socio-Economic Rights? South African Insights into Australia's Debate
• Stephen Tully, Like Oil and Water: A Sceptical Appraisal of Climate Change and Human Rights
• David Jacyk, Article 25 Arbitration in WTO Dispute Settlement: An Alternative Forgotten?
• Ben Mostafa, The Sole Effects Doctrine, Police Powers and Indirect Expropriation under International Law

Clark & Kaufman: After Genocide

Phil Clark (Univ. of Oxford) & Zachary D. Kaufman (Yale Univ. - Law) have published After Genocide: Transitional Justice, Post-Conflict Reconstruction & Reconciliation in Rwanda and Beyond (Columbia Univ. Press 2009). Here's the abstract:

In After Genocide, leading scholars and practitioners analyse the political, legal and regional impact of events in post-genocide Rwanda within the broader themes of transitional justice, reconstruction and reconciliation. Given the forthcoming fifteenth anniversary of the Rwandan genocide, and continued mass violence in Africa, especially in Darfur, the Democratic Republic of Congo and northern Uganda, this volume is unquestionably of continuing relevance.
The book includes chapters from leading scholars in this field, including William Schabas, René Lemarchand, Linda Melvern, Kalypso Nicolaïdis and Jennifer Welsh, along with senior government and non-government officials involved in matters related to Rwanda and transitional justice, including Hassan Bubacar Jallow (Prosecutor of the UN International Criminal Tribunal for Rwanda), Martin Ngoga (Prosecutor General of the Republic of Rwanda) and Luis Moreno Ocampo (Prosecutor of the International Criminal Court). The book also contains an unprecedented debate between Rwandan President Paul Kagame and René Lemarchand on post-genocide memory and governance in Rwanda. Because Rwandan voices have rarely been heard internationally in the aftermath of the genocide, this anthology also incorporates chapters from Rwandan academics and practitioners, such as Tom Ndahiro, Solomon Nsabiyera Gasana and Jean Baptiste Kayigamba—all of whom are also survivors of the 1994 genocide—and draws on their personal experiences. After Genocide constitutes the most comprehensive survey to date of issues related to post-genocide Rwanda and transitional justice.

Ferstman, Goetz, & Stephens: Reparations for Victims of Genocide, War Crimes and Crimes against Humanity

Carla Ferstman, Mariana Goetz, & Alan Stephens have published Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making (Martinus Nijhoff Publishers 2009). Here's the abstract:

This book provides detailed analyses of systems that have been established to provide reparations to victims of genocide, crimes against humanity and war crimes, and the way in which these systems have worked and are working in practice. Many of these systems are described and assessed for the first time in an academic publication.

The publication draws upon a groundbreaking Conference organised by the Clemens Nathan Research Centre (CNRC) and REDRESS at the Peace Palace in The Hague, with the support of the Dutch Carnegie Foundation. Both CNRC and REDRESS had become very concerned about the extreme difficulty encountered by most victims of serious international crimes in attempting to access effective and enforceable remedies and reparation for harm suffered. In discussions between the Conference organisers and Judges and officials of the International Criminal Court, it became ever more apparent that there was a great need for frank and open exchanges on the question of effective reparation, between the representatives of victims, of NGOs and IGOs, and other experts.

It was clear to all that the many current initiatives of governments and regional and international institutions to afford reparations to victims of genocide, crimes against humanity and war crimes could benefit greatly by taking into full account the wide and varied practice that had been built up over several decades. In particular, the Hague Conference sought to consider in detail the long experience of the Conference on Jewish Material Claims against Germany (the Claims Conference) in respect of Holocaust restitution programmes, as well as the practice of truth commissions, arbitral proceedings and a variety of national processes to identify common trends, best practices and lessons.

This book thus explores the actions of governments, as well as of national and international courts and commissions in applying, processing, implementing and enforcing a variety of reparations schemes and awards. Crucially, it considers the entire complex of issues from the perspective of the beneficiaries - survivors and their communities - and from the perspective of the policy-makers and implementers tasked with resolving technical and procedural challenges in bringing to fruition adequate, effective and meaningful reparations in the context of mass victimisation.

Lutz & Reiger: Prosecuting Heads of State

Ellen L. Lutz (Cultural Survival) & Caitlin Reiger (International Center for Transitional Justice) have published Prosecuting Heads of State (Cambridge Univ. Press 2009). Here's the abstract:

Since 1990, 67 former heads of state or government have been legitimately prosecuted for serious human rights or financial crimes. Many of these leaders were brought to trial in reasonably free and fair judicial processes, and some served time in prison as a result. This book explores the reasons for the meteoric rise in trials of senior leaders and the motivations, public dramas, and intrigues that accompanied efforts to bring them to justice. Drawing on an analysis of the 67 cases, the book examines the emergence of regional trends in Europe and Latin America and contains eight case studies of high-profile trials of former government leaders: Augusto Pinochet (Chile), Alberto Fujimori (Peru), Slobodan Milosevic (former Yugoslavia), Charles Taylor (Liberia and Sierra Leone), and Saddam Hussein (Iraq) – studies written by experts who closely followed their cases and their impacts on wider societies. This is the only book that examines the rise in the number of domestic and international trials globally and tells the tales in readable prose and with fascinating details.