Saturday, October 10, 2009

May & Hoskins: International Criminal Law and Philosophy

Larry May (Washington Univ., St Louis - Philosophy) & Zachary Hoskins (Washington Univ., St Louis - Philosophy) have published International Criminal Law and Philosophy (Cambridge Univ. Press 2009). Contents include:
  • Larry May & Zach Hoskins, Introduction
  • Win-chiat Lee, International crimes and universal jurisdiction
  • Kristen Hessler, State sovereignty as an obstacle to international criminal law
  • Leslie Francis & John Francis, International criminal courts, the rule of law, and the prevention of harm: building justice in times of injustice
  • Helen Stacy, Criminalizing culture
  • Larry May, Identifying groups in genocide cases
  • Joanna Kyriakakis, Prosecuting corporations for international crimes: the role for domestic criminal law
  • Douglas Lackey, Post war environmental damage: a study in jus post bellum
  • Steve Viner, On state self-defense and Guantánamo Bay
  • Anat Biletzki, Politicizing human rights (using international law)
  • Deirdre Golash, The justification of punishment in the international context
  • Colleen Murphy, Political reconciliation and international criminal trials

Friday, October 9, 2009

Brockman-Hawe: ICTY Special Chamber Decision In the Case Against Florence Hartmann

Benjamin E. Brockman-Hawe (American Society of International Law) has posted an ASIL Insight on ICTY Special Chamber Decision In the Case Against Florence Hartmann.

Call for Papers: Third Annual International Law Colloquium

The Department of Law, School of Oriental and African Studies, University of London, in conjunction with the Department of Law, London School of Economics, has issued a call for papers for the third annual International Law Colloquium for doctoral students, January 16-17, 2010. Here's the call:

The International Law Colloquium is designed for doctoral students working on dissertations in the field of international law and related subjects. Participants are from the UK and elsewhere in the world. The purpose of the Colloquium is to provide students with the opportunity to make a brief presentation about their work (or parts thereof) for open and constructive discussion with input from a panel of scholars including Matthew Craven (SOAS), Catriona Drew (SOAS), Florian Hoffman (LSE), David Kennedy (Harvard/ SOAS), Susan Marks (LSE) and Ralph Wilde (UCL). Preference will be given to projects with a theoretical or interdisciplinary dimension.

Themes from previous years have included: the ‘role’ of international or comparative legal scholars; the conceptual and normative relations between the ‘private’ and ‘public’ in international law; the dimensions of North/South debates in international trade, investment, labour, and environment; states of exception and/or emergency; post-colonial and Third World approaches to international and comparative legal studies; the international rule of law; and the histories of international law.

The Colloquium will be held in the Brunei Gallery at SOAS on the 16th and 17th January 2010.


Students interested in participating should submit an abstract of no more than 400 words as well as a brief biographical statement, including information regarding current academic affiliations and general research interests, by 27th November 2009. All inquiries and materials should be addressed to the Centre for the Study of Colonialism, Empire and International Law at SOAS:

Attendance at the Colloquium is free, but participants will have to bear the costs of their own travel and accommodation. Further advice on such matters is available on request.

Wittich, Reinisch, & Gattini: Kosovo - Staatsschulden - Notstand - EU-Reformvertrag - Humanitätsrecht

Stephan Wittich (Universität Wien - Law), August Reinisch (Universität Wien - Law), & Andrea Gattini (Università degli studi di Padova - Law) have published Kosovo - Staatsschulden - Notstand - EU-Reformvertrag - Humanitätsrecht: Beiträge zum 33. Österreichischen Völkerrechtstag 2008 in Conegliano (Peter Lang 2009). Contents include:
  • Christian Pippan, Die Unabhängigkeit des Kosovo im Lichte des Völkerrechts: Fünf Thesen
  • Enrico Milano, The Independence of Kosovo under International Law
  • Helmut Tichy, Rechtsfragen bei der Anerkennung der Unabhängigkeit des Kosovo
  • Stefano Dorigo, The Italian Jurisprudence Facing Argentina's Financial Crisis: Some Critical Remarks from the Perspective of International Law
  • Elisabeth Handl, Immunitätsrechtliche Probleme in Zusammenhang mit Argentinienanleihen-Klagen in Deutschland, Italien und den USA
  • Isabelle Buffard, Zum Verhältnis zwischen allgemeinem Völkerrecht und vertraglichen Subsystemen im Hinblick auf die Nichterfüllung völkerrechtlicher Vertragspflichten
  • Christina Binder, Nichterfüllung völkerrechtlicher Vertragspflichten wegen Notstands. Der Notstand im Völkergewohnheitsrecht und in besonderen Vertragsbestimmungen
  • Gerhard Hafner, Die Weiterentwicklung der Gemeinsamen Außen- und Sicherheitspolitik der Europäischen Union ohne Lissabonner Vertrag
  • Andreas Kumin, Das « Auswärtige Handeln » der Union gemäß EU-Reformvertrag - Ausgewählte Aspekte
  • Erich Kussbach, Mittel und Wege zur Durchsetzung des Humanitären Kriegsvölkerrechts
  • Sigmar Stadlmeier & Franz Leidenmühler, Krisenbewältigungsoperationen und das Recht der besetzten Gebiete
  • Alexander Breitegger, Von Grimsby bis Oslo: Ein Ende von über 60 Jahren Leid für Zivilisten durch Streumunitionen?
  • Christian Ortner, Österreich-Ungarns letzte Offensive 1918

Workshop: Guilfoyle

Douglas Guilfoyle (University College London - Law) will give a talk today at the Lauterpacht Centre for International Law Friday Lunchtime Lecture Series on "Piracy off Somalia - from Military Solutions to Law Enforcement Cooperation."

Thursday, October 8, 2009

Judge Robinson's Address to the UN General Assembly

Today, Judge Patrick Robinson, President of the International Criminal Tribunal for the Former Yugoslavia, addressed the UN General Assembly to present the Tribunal's Annual Report. The full address is here. Here's the ICTY press release:

President Patrick Robinson today presented the Tribunal’s sixteenth annual report to the UN General Assembly. In his address, the President updated Member States on the achievements of the Tribunal in the past year and the challenges it faces in ensuring the successful completion of its mandate.

President Robinson expressed gratitude to the members of the Assembly for the support given to the Tribunal over the past 16 years, emphasizing that this support remained essential for the timely completion of the institution’s work.

“The Tribunal’s commitment to its completion strategy remains steadfast,” President Robinson said, highlighting that three appeal judgements and three trial judgements were rendered during the reporting period. This brings the number of cases fully completed by the Tribunal to 86 encompassing 120 accused.

The President further informed the General Assembly of the estimates for the completion of the Tribunal’s current caseload. All but four trials are expected to conclude in 2010 with three finishing in early 2011 and the final trial, that of Radovan Karadžić, ending in early 2012. All appellate proceedings are expected to conclude by mid-2013.

Turning to the issue of the two remaining fugitives, Ratko Mladić and Goran Hadžić, President Robinson urged the Member States to do all they can to ensure they are arrested and brought into the Tribunal’s custody before the end of its mandate: “If they are not brought to justice, it will leave a stain on the historic contribution of the United Nations to peace-building in the former Yugoslavia. I urge Member States to do all within their power to ensure the apprehension of these fugitives as a matter of urgency.”

The President also reported on the Tribunal’s ongoing efforts to strengthen the capacity of local jurisdictions and cement its legacy across the region of the former Yugoslavia thereby contributing to the maintenance of peace and security in the region. Two projects initiated by the Tribunal last year as part of these efforts have now been completed.

A manual on the Tribunal’s best practices was launched in May of this year, and a report on best practices, lessons learned and remaining gaps in capacity building was presented in September. The President also spoke about the Tribunal’s deepening cooperation with other international institutions in ensuring that national justice systems in the region have the capacity to handle their growing war crimes caseload. Furthermore, he praised the Office of the Prosecutor’s efforts to build strong partnerships with its counterparts in the region.

President Robinson also used the opportunity to raise an issue of particular importance before the General Assembly: that of compensating victims of crimes in the former Yugoslavia as a means of complementing the Tribunal’s efforts to contribute to long-term peace and stability in the region. Calling upon the Assembly to support the establishment of a claims commission, President Robinson said: “I must agree that the international community has forgotten [the victims]. Currently, there is no effective mechanism by which victims can seek compensation for their injuries, despite the fact that their right to such compensation is firmly rooted in international law.” He added that “justice is not only about punishing perpetrators but also about restoring dignity to victims by ensuring that they have concrete means to rebuild their lives”.

On the issue of staff retention, the President thanked the General Assembly for adopting measures allowing the Tribunal to offer contracts to staff, in line with the dates of planned post reductions and in accordance with trial schedules. President Robinson however repeated that this was not enough to reduce the rate at which staff has been leaving the Tribunal. He urged Member States to take further supportive action to retain the Tribunal’s highly qualified staff, which is essential for orderly completion of its work.

In conclusion, the President recalled the Tribunal’s pioneering work and achievements in international criminal justice and urged the General Assembly to assist the Tribunal in completing its work in a successful and rational manner. He also called for continued support to national institutions in the former Yugoslavia so that they can continue the Tribunal’s mission to fight impunity.

Call for Papers: War and Self-Defence

A call for papers has been issued by the University of Sheffield Department of Philosophy for a conference it will host on "War and Self-Defence," August 25-27, 2010. Here's the call:

Recent years have seen a rapid growth of interest in just war theory. The current political climate has confronted us with important and difficult questions about, amongst other things, the moral status of combatants, the moral status of non-combatants, the possibility of wars waged by non-state actors, and the conditions under which one can be said to have a just cause for war. Many writers take the answers to these questions to be based, at least in part, on considerations about what individuals may do in self-defence, or other-defence. Others have denied the existence of any substantive relationship between the ethics of self-defence and the ethics of national-defence. This conference, hosted by the Sheffield Philosophy department, will bring together leading researchers in the field, and offer an opportunity for scholars to present recent research in this area. Submissions from those working in related fields, such as Law, Politics and International Relations, are also welcome.

There will be a number of parallel sessions held during the conference. Those wishing to present should submit a paper of no more than 3000 words, suitable for a 30 minute presentation, along with an abstract of 150 words, to by the 1st of December 2009. Please note that papers should be prepared for blind review and that only electronic submissions will be accepted.

Suggested paper topics include:

  • The relationship between war and self-defence
  • The ethics of self-defence
  • Wars of humanitarian intervention
  • The moral status of combatants
  • Killing non-combatants
  • Just causes for war
  • The idea of legitimate authority
  • The moral status of terrorists
  • The moral wrongness of terrorism

There are plans to put together an edited volume of a selection of the conference papers. Those authors who would like to have their paper considered for inclusion in this collection should mention this in their submission email. Authors of the selected papers will be notified shortly after the conference.

This conference is generously sponsored by The Leverhulme Trust and the Mind Association.

Conference: The Role of Ethics in International Law

The International Legal Theory Interest Group of the American Society of International Law will host a conference on "The Role of Ethics in International Law," November 13th, in Washington, DC. Program and registration are available here.

Workshop: Proportionality and Noncombatant Immunity

Today, the Oxford Institute for Ethics, Law and Armed Conflict will host a roundtable discussion on "Proportionality and Noncombatant Immunity." Participants will include Jeff McMahan (Rutgers Univ. - Philosophy), Helen Frowe (Univ. of Sheffield - Philosophy), and Seth Lazar (ELAC).

Wednesday, October 7, 2009

Conference: Canadian Council on International Law 2009 Annual Conference (Reminder)

As noted previously, the Canadian Council on International Law's 38th Annual Conference will take place next week, on October 14-16, 2009, in Ottawa. The conference theme is "Things Fall Apart; Can the Centre Hold? Multilateral Readiness to Address Challenges Ahead." The program is available here.

Sarkar: International Development Law

Rumu Sarkar (Africa Center for Strategic Studies) has published International Development Law: Rule of Law, Human Rights, and Global Finance (Oxford Univ. Press 2009). Here's the abstract:
International Development Law: Rule of Law, Human Rights, and Global Finance provides a tightly interwoven, well-organized, multi-disciplinary approach to the complex legal issues underlying sustainable international development. Professor Sarkar provides an overarching view of the legal principles that constitute international development law in an easily understandable way. This book gives the reader new insights on the origins of global poverty, identifies legal impediments to long-term, sustainable economic growth, and provides a better understanding of the challenges faced by the international community in resolving global poverty issues.

University of Nottingham School of Law-ILA (British Branch) Regional Seminar Series

Here's the schedule for the University of Nottingham School of Law-International Law Association (British Branch) Regional Seminar Series:
  • October 21, 2009: Steven M. Wheatley (Univ. of Leeds - Law), Why International Lawyers are a Threat to Democracy, and How Constitutional Lawyers Ought to Respond
  • November 20, 2009: Anthea E. Roberts (LSE - Law), Balancing Interpretive Power: Treaty Parties and Tribunals
  • February 3, 2010: Holly A. Cullen (Univ. of Durham - Law), Moving Beyond the Palermo Protocol: Developing a European Regional Approach to Human Trafficking
  • February 26, 2010: Ellen Hey (Erasmus Univ. of Rotterdam - Law), The Millennium Development Goals, Human Rights and Functionalism in International Law
  • March 3, 2010: Claus Kreß (Univ. of Cologne - Law), Time of Decision: Some Thoughts on the Immediate Future of the Crime of Aggression

Hilpold: Das Selbstbestimmungsrecht der Völker

Peter Hilpold (Universität Innsbruck - Law) has published Das Selbstbestimmungsrecht der Völker: Vom umstrittenen Prinzip zum vieldeutigen Recht? (Peter Lang 2009). Contents include:
  • Peter Hilpold, Die Sezession - zum Versuch der Verrechtlichung eines faktischen Phänomens
  • Jörg Fisch, Die Geschichte des Selbstbestimmungsrechts der Völker, oder der Versuch, einem Menschenrecht die Zähne zu ziehen
  • Sigrid Boysen, Selbstbestimmungsrecht und Recht auf Demokratie
  • Samuel Salzborn, Ethnischer Selbstbestimmungsanspruch contra demokratisches Selbstbestimmungsrecht
  • Gerhard Hafner, Das Selbstbestimmungsrecht und Südtirol
  • Hans-Joachim Heintze, Indigene Völker und das Selbstbestimmungsrecht
  • Timo Koivurova, The Right to Self-determination of the Saami: the ideal faces the reality

Workshops: Benvenisti & Downs, Howse, Waibel

Eyal Benvenisti (Tel Aviv Univ. - Law) and George Downs (New York Univ. - Politics) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on Interdisciplinary Approaches to International Law on "Will National Court Cooperation Promote Global Accountability? The Judicial Review of International Organizations." Beth Simmons (Harvard Univ. - Government) and Ryan Goodman (New York Univ. - Law) will be the discussants.

Rob Howse (New York Univ. - Law) will give a talk today at the Harvard Law School International Law Workshop on "WTO Subsidies Disciplines and Climate Change Mitigation Policies: Options for Reconciliation."

Michael Waibel (Univ. of Cambridge - Law) will give a talk today at the UCL Faculty of Laws and International Law Association (British Branch) International Law Seminar on "Insolvent States in International Law."

Tuesday, October 6, 2009

SFRC: Hearing on the Hague Convention on International Recovery of Child Support

This afternoon, the Senate Foreign Relations Committee held a hearing on the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance (Treaty Doc. 110-21). Witnesses included: Keith Loken (Assistant Legal Adviser, Office of Private International Law, Department of State); Vicki Turetsky (Commissioner, Office of Child Support Enforcement, Department of Health and Human Services); Battle Robinson (Uniform Law Commissioner); and Alisha Griffin (Assistant Director, Office of Child Support Services, New Jersey Department of Human Services). Links are to the witnesses' written statements.

New Issue: Cuadernos de Derecho Transnacional

The latest issue of Cuadernos de Derecho Transnacional (Vol. 1, no. 2, October 2009) is out. Contents include:
  • Estudios
    • Hilda Aguilar Grieder, Arbitraje comercial internacional y grupos de sociedades
    • Celia M. Caamiña Domínguez, Los contratos de seguro del art. 7 del Reglamento Roma I
    • Alfonso-Luis Calvo Caravaca, El Reglamento Roma I sobre la ley aplicable a las obligaciones contractuales: cuestiones escogidas
    • Esperanza Castellanos Ruiz, Las normas de Derecho Internacional Privado sobre consumidores en la Ley 34/2002 de servicios de la sociedad de la información y de comercio electrónico
    • Carlos Llorente Gómez de Segura, La ley aplicable al contrato de transporte internacional según el Reglamento Roma I
    • Dário Moura Vicente, Liberdades comunitárias e Direito Internacional Privado
    • Giuseppina Pizzolante, I contratti con i consumatori e la nuova disciplina comunitaria in materia di legge aplicabile alle obbligazioni contrattuali
    • Francesco Seatzu, La Convenzione europea dei diritti dell’uomo e le libertà di iniziativa imprenditoriale e professionale
    • Pablo Zapatero Miguel, Diplomacia y cultura legal en el sistema GATT/OMC
  • Varia
    • Nuria María Almagro Rodríguez, Comentario a la sentencia de la Sala de lo Contencioso-Administrativo del Tribunal Supremo, de 19 de junio 2008, sobre denegación de la concesión de la nacionalidad española por poligamia
    • Pilar Blanco-Morales Limones, Nota sobre la reforma de la ley de sociedades profesionales para el reconocimiento en España de las sociedades profesionales de otros estados miembros de la Unión Europea
    • Alfonso-Luis Calvo Caravaca & Javier Carrascosa González, Gestación por sustitución y Derecho Internacional Privado: consideraciones en torno a la resolución de la Dirección General de los Registros y del Notariado de 18 de febrero de 2009
    • Javier Carrascosa González, Apuntes sobre la competencia judicial internacional y la ley aplicable a las donaciones: antes y después del Reglamento Roma I
    • Pietro Franzina, I conflitti di leggi davanti agli arbitri del comercio internazionale: note in tema di collegamento obiettivo alla luce del Regolamento Roma I
    • Alberto Muñoz Fernández, Actos de comunicación de tribunales españoles dirigidos a litigantes estadounidenses en procesos civiles y mercantiles
    • María Dolores Ortiz Vidal, Nuevos interrogantes y nuevas respuestas sobre la STJCE de 14 de octubre de 2008, Grunkin-Paul

PCA: Multiple Party Actions in International Arbitration

The Permanent Court of Arbitration has published Multiple Party Actions in International Arbitration: Consent, Procedure and Enforcement (Oxford Univ. Press 2009). Here's the abstract:

This publication from the International Bureau of the Permanent Court of Arbitration (PCA) presents a collection of studies on the key issues found in complex international commercial and investment disputes. Renowned authors from Europe and North America consider issues from perspectives emanating from both the Anglo-American and Continental European legal systems.

The authors consider international multiparty arbitration and its attendant problems from both a conceptual and practical perspective, beginning with the overarching legal problems of determining the proper parties to the arbitration and the ambit of contractual consent. Topics which are comprehensively examined include: Joinder of parties and consolidation of arbitral proceedings; the challenges of administration of multiparty arbitrations; investment arbitration involving multiple parties and multiparty issues in investor-state arbitration; classwide arbitration and arbitrating mass investor claims; lessons that can be learnt from mass claims processes; and enforcement issues. The book also includes a practitioner-oriented discussion of multiparty arbitration in the construction industry.

Byers: Who Owns the Arctic?

Michael Byers (Univ. of British Columbia - Law) has published Who Owns the Arctic?: Understanding Sovereignty Disputes in Canada’s North (Douglas & McIntyre 2009). Here's the abstract:

Who actually controls the Northwest Passage? Who owns the trillions of dollars of oil and gas beneath the Arctic Ocean? Which territorial claims will prevail—those of the U.S., Russia, Canada or the Nordic nations—and why? And, in an age of rapid climate change, how do we protect the fragile Arctic environment while seizing the economic opportunities presented by the rapidly melting sea ice?

In the highly readable book Who Owns the Arctic, Michael Byers, a leading Arctic expert and international lawyer explains the sometimes contradictory rules governing the division and protection of the Arctic and the disputes that remain unresolved. What emerges is a vision for the Arctic in which co-operation, not conflict, prevails, and where the sovereignty of individual nations is exercised for the benefit of all.

Oxford Public International Law Discussion Group

Here are the schedule for the Oxford Public International Law Discussion Group for Michaelmas Term 2009:
  • October 15: Philippe Kirsch (formerly, Judge, International Criminal Court), Prospects and Challenges in International Criminal Justice
  • October 22: Treasa Dunworth (Univ. of Auckland - Law), The Accountability of International Organisations: The Role of Civil Society
  • October 29: Patrick Capps (Univ. of Bristol - Law), Lauterpacht's Method
  • November 5: Nigel White (Univ. of Nottingham - Law), The Security Council, the Security Imperative and International Law
  • November 12: Yves Daudet (Secretary-General, Hague Academy of International Law), The Special Tribunal for Lebanon
  • November 19: Aurel Sari (Univ. of Exeter - Law), Jurisdiction over Foreign Armed Forces: Examining the Calipari/Lozano Case
  • November 26: Ben Saul (Univ. of Sydney - Law), Prosecuting Indonesian War Crimes in Portuguese Timor: the International Legal Protection of Journalists in Armed Conflict
  • December 3: Ed Bates (Univ. of Southampton - Law), The European Court of Human Rights: the First Half-Century

Besson: The Authority of International Law - Lifting the State Veil

Samantha Besson (Univ. of Fribourg - Law) has published The Authority of International Law - Lifting the State Veil (Sydney Law Review, Vol. 31, no. 3, p. 343, September 2009). Here's the abstract:
The legitimate authority of international law, ie its ability to generate moral duties of obedience for its subjects whether states, international organisations or individuals, has become a subject of growing interest among international legal scholars and legal theorists over the past fifteen years or so. The initial difficulty most accounts face has to do with the reality of international law itself qua decentralised and non-hierarchical legal order. Stemming from those complexities, a second difficulty pertains to the concept of legal authority itself. This article presents a single concept of legal authority and a set of justifications for the legitimacy of international law that can not only accommodate the complexity of contemporary international law, but also make sense of it in the context of competing claims to legitimacy made over the same people by national, regional and international legal orders. The key to the authority of international law in a pluralist legal order lies, the author argues, in lifting the state veil. This implies focusing on the individual as the ultimate subject of authority in international law. The article’s argument unfolds in three steps. It starts by presenting the conception of legal authority the article is based on, and in particular a revised co-ordination-based version of Joseph Raz’s service conception of authority. It then argues that this autonomy-based account of authority best explains the legitimacy of international law by focusing on four key features of legal authority in the international context: the multiplicity of international subjects and law-makers and their relationship; the role of co-ordination in the justification of international law’s authority; the piecemeal nature of authority and the role of state consent in that context; and, finally, the protection of state sovereignty and its compatibility with the authority of international law. In the third and final section, the article addresses borderline cases, and in particular relativism-based exclusions of international legal authority and exceptions to that authority based on justified international disobedience.

Monday, October 5, 2009

Osiel: Making Sense of Mass Atrocity

Mark Osiel (Univ. of Iowa - Law) has published Making Sense of Mass Atrocity (Cambridge Univ. Press 2009). Here's the abstract:
Genocide, crimes against humanity, and the worst war crimes are possible only when the state or other organizations mobilize and coordinate the efforts of many people. Responsibility for mass atrocity is therefore always widely shared, often by thousands. Yet criminal law, with its liberal underpinnings, insists on blaming particular individuals for isolated acts. Is such law therefore constitutionally unable to make any sense of the most catastrophic conflagrations of our time? Drawing on the experience of several recent prosecutions (both national and international), this book trenchantly diagnoses law’s limits at such times and offers a spirited defense of its moral and intellectual resources for meeting the vexing challenge of holding anyone criminally accountable for mass atrocity. Just as today’s war criminals develop new methods of eluding law’s historic grasp, so criminal law flexibly devises novel responses to their stratagems. Mark Osiel examines several such recent legal innovations in international jurisprudence and proposes still others.

New Issue: World Arbitration and Mediation Review

The latest issue of the World Arbitration and Mediation Review (Vol. 3, no. 1, 2009) is out. Contents include:
  • Siegfried H. Elsing & Alexandra N. Diehl, The Challenge of Developing Common Mediation Law Regimes in Europe and the United States: From “Patchwork” to Coherence?
  • Edna Sussman, User Preferences and Mediator Practices: Can They Be Reconciled Within the Parameters Set By Ethical Considerations
  • Richard M. Calkins, Essay: Finding Creative Solutions in ADR

Keitner: Rights Beyond Borders

Chimène I. Keitner (Univ. of California - Hastings College of the Law) has posted Rights Beyond Borders. Here's the abstract:

Burgeoning scholarly interest in comparative constitutional law, transnational criminal law, and national security law has generated surprisingly little synthesis among these fields. The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article addresses this gap by developing a conceptual framework for thinking about the extraterritorial application of domestic rights guarantees, with a focus on cases arising from the detention and interrogation of terrorism suspects. Part I identifies three modes of reasoning about rights beyond borders, which I label constitution as compact, constitution as conscience, and constitution as code. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her personal status and/or territorial presence. Conscience-based reasoning focuses the government’s mandate to act solely in accordance with a defined set of national values in all locations and circumstances. Code-based reasoning takes a strictly territorial approach to restrictions on government action outside the national territory, even vis-à-vis citizens.

Part II examines the evolving jurisprudence of extraterritorial rights in three jurisdictions in light of these models: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act. These three characterizations of ways of thinking about the extraterritorial application of domestic rights regimes (compact, conscience, and code) can provide a convenient vocabulary for describing how domestic courts reason about specific challenges to government action beyond national borders. They can also help us think more systematically about how courts and other actors should reason about rights beyond borders, as governments bring their coercive power to bear on individuals in a variety of extraterritorial circumstances.

New Issue: Journal of World Investment & Trade

The latest issue of the Journal of World Investment & Trade (Vol. 10, no. 4, August 2009) is out. Contents include:
  • Stephen Jagusch & Nicole Duclos, Compensation for the Breach of Relative Standards of Treaty Protection
  • Jacques Werner, Revisiting the Necessity Concept
  • John Y. Gotanda, The Unpredictability Paradox: Punitive Damages and Interest in International Arbitration
  • Valentina Sara Vadi, Fragmentation of Cohesion? Investment Versus Cultural Protection Rules
  • Eduardo Savarese, BIT Clauses Bearing on the Ratione Temporis Jurisdiction of ICSID Tribunals. A Survey on the Constituent Elements of Investor-State Legal Disputes under BITs
  • Mathias Audit, Is the Erecting of Barriers against Sovereign Wealth Funds Compatible with International Investment Law?
  • Joseph M. Senona, Global Economic Recession and Protectionism: Legitimacy of the Proudly South African and Buy Local Campaigns

BIICL: The Geneva Conventions and Israel

Alan Baker (formerly, Legal Adviser, Ministry of Foreign Affairs, Israel) will speak today at the British Institute of International and Comparative Law on "The Geneva Conventions and Israel." This is the second in a series of seminars on the Geneva Conventions of 1949 in celebration of the sixtieth anniversary of their adoption.

Workshop: Beard

Jack Beard (Univ. of California, Los Angeles - Law) will give a talk today at the Georgetown University Law Center Foreign Relations Law Colloquium on "Law and War in the Virtual Era."

Sunday, October 4, 2009

Mégret: The Diversification of Actors Involved in Armed Conflicts: Beyond 'Direct Participation to Hostilities'?

Frédéric Mégret (McGill Univ. - Law) has posted The Diversification of Actors Involved in Armed Conflicts: Beyond 'Direct Participation to Hostilities'? (La Diversification Des Acteurs Impliqués Dans Les Conflits Armés: Vers Un Dépassement De La 'Participation Directe Aux Hostilités'?). Here's the abstract:
This paper (in French) was originally presented at a conference at the Collège de France organized by the University of Paris I on "The role of third parties to the implementation of international humanitarian law". As discussant, I was asked to provide a general presentation of the challenges of distinguishing between "parties" and "non-parties" in today's conflicts. The paper seeks to give an overview of current debates, whilst questioning how long this distinction can remain the summa divisio of the laws of war in a context where it radically challenged both by non-state actors and states. I suggest that the distinction is in practice more a continuum than a clear binary opposition in that, although some actors may more naturally be seen as "parties" or "non-parties", there is no status that cannot change over the course of a conflict depending on what one does (as opposed to what one is). I suggest that this essential and inevitable fluidity is also what makes it very difficult to keep these distinctions stable over time. I then turn to what I see as the two hardest cases of maintaining the division, namely private security companies on the one hand, and terror groups on the other (arguably both instances - albeit very different - of a larger trend towards privatization of violence). The great difficulties that these actors create in terms of the implementation of international humanitarian law suggest that the distinction is under threat. In the conclusion, I outline some ways in which the distinction might be reinvigorated or transcended. I suggest, for example, that one should critically assess international humanitarian law's continued statist biases (state forces are always combatants, even if they violate the laws of war, whereas this is not true of non-state or irregular forces) on humanitarian grounds. Moreover, I suggest that the normative asymmetry of conflicts creates conditions where states must be willing to abide by high standards even confronted with an adversary that does not - so much so, in fact, that international human rights law may in the end turn out to be the most cogent way to regulate contemporary modes of even armed violence.