Montt: State Liability in Investment Treaty Arbitration

Santiago Montt has published State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative Law in the BIT Generation (Hart Publishing 2009). Here's the abstract:

Today there are more than 2,500 bilateral investment treaties (BITs) around the world. Most of these investment protection treaties offer foreign investors a direct cause of action to claim damages against host-states before international arbitral tribunals. This procedure, together with the requirement of compensation in indirect expropriations and the fair and equitable treatment standard, have transformed the way we think about state liability in international law.

We live in the BIT generation, a world where BITs define the scope and conditions according to which states are economically accountable for the consequences of regulatory change and administrative action. Investment arbitration in the BIT generation carries new functions which pose unprecedented normative challenges, such as the arbitral bodies established to resolve investor/state disputes defining the relationship between property rights and the public interest. They also review state action for arbitrariness, and define the proper tests under which that review should proceed.

State Liability in Investment Treaty Arbitration is an interdisciplinary work, aimed at academics and practitioners, which focuses on five key dimensions of BIT arbitration. First, it analyses the past practice of state responsibility for injuries to aliens, placing the BIT generation in historical perspective. Second, it develops a descriptive law-and-economics model that explains the proliferation of BITs, and why they are all worded so similarly. Third, it addresses the legitimacy deficits of this new form of dispute settlement, weighing its potential advantages and democratic shortfalls. Fourth, it gives a comparative overview of the universal tension between property rights and the public interest, and the problems and challenges associated with liability grounded in illegal and arbitrary state action. Finally, it presents a detailed legal study of the current state of BIT jurisprudence regarding indirect expropriations and the fair and equitable treatment clause.

Alfredson: Creating Human Rights: How Noncitizens Made Sex Persecution Matter to the World

Lisa S. Alfredson (Univ. of Pittsburgh - Public and International Affairs) has publsihed Creating Human Rights: How Noncitizens Made Sex Persecution Matter to the World (Univ. of Pennsylvania Press 2009). This is another volume in the series Pennsylvania Studies in Human Rights. Here's the abstract:

Creating Human Rights offers the first systematic study of a pioneering women's refugee movement and its challenge, as an international trigger case, to more conventional paths toward human rights policy development. Lisa S. Alfredson argues that such cases, which unfold in the context of a specific country and have profound impacts on international human rights efforts, have been neglected in research and pose a challenge to recent theorizing on human rights change.

In the early 1990s, Canada witnessed the emergence of the world's first comprehensive refugee policy for women who were seeking protection from female-specific forms of violence—rape, domestic abuse, public stoning of adulterers, genital mutilation—while challenging a gender-biased system. Close examination of this novel movement, Alfredson contends, provides crucial insights into why and how states may articulate new human rights that set international precedents.

Analyzing original empirical data and sociopolitical historical trends, the book documents the decisive global impacts of the movement while shedding light on the paradox of noncitizen politics and asylum seekers' little recognized political strength. Contrary to expectation, findings suggest transnational networks and pressures are not required for some forms of change. Rather, international trigger cases illuminate a range of other key actors and advocacy strategies leading, subsequently, to a more comprehensive understanding of human rights acceptance.
In the case of the women's refugee movement, the convergence of human rights and noncitizen politics points toward a new dimension for human rights scholarship that, in the current age of globalization, is becoming critically important.

Brand: Consent, Validity and Choice of Forum Agreements in International Contracts

Ronald A. Brand (Univ. of Pittsburgh - Law) has posted Consent, Validity and Choice of Forum Agreements in International Contracts (in Liber Amicorum Hubert Boken, I. Boone, I. Claeys, & L. Lavrysen eds., 2009). Here's the abstract:

The doctrine of separability in international contracts often leads to requests for a court or arbitral tribunal to consider challenges to both the existence and validity of a choice of forum clause prior to hearing party positions on the existence and validity of the remainder of the contract. What is not always clear, however, is what law governs the consideration of choice of forum issues. This inquiry contains at least two important parts: whose law is to govern the determination, and which law (general contract law, procedural law, law on dispute resolution, etc.) is to be applied. This chapter considers the provisions of each the New York Arbitration Convention, the Brussels I Regulation, and the 2005 Hague Convention on Choice of Court Agreements that are applicable to the questions of consent to and validity of choice of forum agreements. Each has different language, without clear distinction to why the language differences exist. The doctrines of separability and competence-competence usually are involved in the determination of what law governs the existence and validity of choice of forum agreements. The existence of a choice of forum agreement and its validity are distinctly different questions, and require consideration beyond the law of jurisdiction or arbitration in order insure that a party to a dispute is not subjected to a forum that would not otherwise have jurisdiction over that party and to whose jurisdiction that party has not consented.

Quataert: Advocating Dignity: Human Rights Mobilizations in Global Politics

Jean H. Quataert (Binghamton Univ. - History) has published Advocating Dignity: Human Rights Mobilizations in Global Politics (Univ. of Pennsylvania Press 2009). This is another volume in the series Pennsylvania Studies in Human Rights. Here's the abstract:

In Advocating Dignity, Jean H. Quataert explores the emergence, development, and impact of the human rights revolution following World War II. Intertwining popular local and national mobilizations for rights with ongoing developments of a formal international system of rights monitoring in the United Nations, Quataert argues that human rights advocacy networks have been a vital dimension of international political developments since 1945. Recalling the popular slogan "Think globally, act locally," Quataert contends that postwar human rights have been significantly shaped by the efforts of people at the grassroots. She shows that human rights politics are constituted by local agencies, actions, and contingencies and reinforced by transnational linkages in international society. The U.N. system is continuously reinvigorated and strengthened by its ties to local individuals, organizations, and groups engaged in day-to-day rights advocacy. This daily work, in turn, is supported by the ongoing activities from above.

Quataert establishes the global contexts for the historical unfolding of human rights advocacy through thorough investigations of graphic case studies such as the Soviet dissident movement, the mothers' demonstrations in Argentina, the transnational antiapartheid campaign, and coalitions for gender and economic justice. Drawing widely from many fields of inquiry, including legal studies, philosophy, international relations theory, political science, and gender history, Advocating Dignity is an innovative study that narrates the hopes and bitter struggles that have altered the course of international and domestic relations over the past sixty years.

Stewart, Kingsbury, & Rudyk: Climate Finance: Key Concepts and Ways Forward

Richard B. Stewart (New York Univ. - Law), Benedict Kingsbury (New York Univ. - Law), & Bryce Rudyk (New York Univ. - Guarini Center on Environmental and Land Use Law) have posted Climate Finance: Key Concepts and Ways Forward (Policy Brief, Harvard Project on International Climate Agreements, Belfer Center for Science and International Affairs, Kennedy School, Harvard Univ., 2009). Here's the abstract:

Climate finance is fundamental to curbing anthropogenic climate change. Compared, however, to the negotiations over emissions reduction timetables, commitments, and architectures, climate finance issues have received only limited and belated attention. Assuring delivery and appropriate use of the financial resources needed to achieve emissions reductions and secure adaptation to climate change, particularly in developing countries, is as vital as agreement on emission caps. Yet, a comprehensive framework on financing for mitigation and adaptation is not in sight. Developed and developing countries cannot agree on even the fundamentals of what should be included (e.g. should private finance through carbon markets be included?), let alone the level and terms of financing commitments, regulatory and other mechanisms, or governance structures.

This impasse, which reflects a lack of trust between developed and developing countries, has manifested itself in basic disagreements over three main issues relating primarily to mitigation finance: first, the necessity of credible and substantial developed country commitments on public funding; second, the role of private finance; and third, the institutions and governance structures to ensure equity and environmental effectiveness.

New Issue: International Criminal Law Review

The latest issue of the International Criminal Law Review (Vol. 9, no. 5, 2009) is out. Contents include:

• Mahdev Mohan, The Paradox of Victim-Centrism: Victim Participation at the Khmer Rouge Tribunal
• Ignacio de la Rasilla del Moral, The Swan Song of Universal Jurisdiction in Spain
• Ralph Henham, Towards Restorative Sentencing in International Criminal Trials
• James Farrant, Is the Extra-territorial Application of the Human Rights Act Really Justified?

Werner & Ali: A Liber Amicorum: Thomas Wälde - Law Beyond Conventional Thought

Jacques Werner (Werner & Associates) & Arif Hyder Ali (Crowell & Moring) have published A Liber Amicorum: Thomas Wälde - Law Beyond Conventional Thought (CMP Publishing 2009). Contents include:

• Jacques Werner & Arif Hyder Ali, Foreword
• Charlotte Wälde, Search Engines, Copyright and Innovative Business Models: How Google Sought to Monopolize/Free [Delete as Appropriate] the Printed Word
• Melaku G. Desta, Legal Issues of Opec Production Management Practices and the Law: An Overview
• Hew R. Dundas, Dispute Prevention and Dispute Settlement: Reflections on Discussions With Thomas Wälde
• William F. Fox, The Wisdom of International Commercial Mediation and Conciliation
• John P. Gaffney, Going to Pieces Without Falling Apart: Wälde's Defence of 'Specialisation' in the Interpretation of Investment Treaties
• Walid Ben Hamida, Investment Treaties and Domestic Courts: A Transactional Mosaic Reviving Thomas Wälde's Legacy
• Mirian Kene Kachikwu, The Changing Face of Political Risk in the Energy Industry
• Abba Kolo, Fat Cats and 'Windfall' Taxes in the Natural Resources Industry: Legal and Political Analysis in the light of Modern Investment Treaties,
• Andrey Konoplyanik, Professor Thomas Wälde: In Memoriam of the Friend
• Andrey Konoplyanik, Global Financial Crisis to Put The PSA Regime in Russia Back on the Agenda
• Ian Laird, Interpretation in International Investment Arbitration - Through the Looking Glass
• Michael McIlwrath, Thomas on the Formation of International Arbitral Tribunals: 'The Conversation'
• A. Timothy Martin, Bifurcation of Title in International Oil & Gas Agreements
• William Park, Investment Claims and Arbitrator Comportment
• Chitra Radhakishun, A United Nations' Liaison Hub and Ombudsoffice in International Economic Relations: A Proposal
• Klaus Reichert, Courts and Arbitration: Forming Choices for Young Lawyers
• Noah Rubins & Azizjon Nazarov, Investment Treaties and the Russian Bear: Baiting the Bear?
• Borzu Sabahi, Moral Damages in International Investment Law: Some Preliminary Thoughts in the Aftermath of Desert Line v Yemen
• Christoph Schreuer & Ursula Kriebaum, At What Time Must Legitimate Expectations Exist?
• Abby Cohen Smutny & Petr Polášek, Unlawful or Bad Faith Conduct as a Bar to Claims in Investment Arbitration

Kaikobad & Bohlander: International Law and Power: Perspectives on Legal Order and Justice

Kaiyan Homi Kaikobad (Brunel Univ. - Law) & Michael Bohlander (Univ. of Durham - Law) have published International Law and Power: Perspectives on Legal Order and Justice Essays in Honour of Colin Warbrick (Martinus Nijhoff Publishers 2009). Contents include:

• D.J. Harris, Collective Complaints Under the European Social Charter Encouraging Progress?
• Jacques Hartmann, The European Convention on Human Rights and Extradition
• Stephen C. Neff, In Search of Clarity: Non Liquet and International Law
• Michael Wood, ‘Constitutionalization’ of International Law: A Sceptical Voice
• Holly Cullen, The Nature of State Obligations in Relation to Child Labour: Choosing Prosecution over Protection
• Vaughan Lowe, Shadows in the Cave: The Nature of International Law When it Appears before English Courts
• Robert McCorquodale, International Organisations and International Human Rights Law: One Giant Leap for Humankind
• Hazel Fox, Imputability and Immunity as Separate Concepts: The Removal of Immunity from Civil Proceedings Relating to the Commission of an International Crime
• Robert Cryer, Neither Here Nor There? The Status of International Criminal Jurisprudence in the International and UK Legal Orders
• Michael Bohlander, Killing Many to Save a Few? Preliminary Thoughts about Avoiding Collateral Civilian Damage by Assassination of Regime Elites
• G.R. Sullivan, Conduct and Proof of Conduct - Two Fundamental Conditions for the Imposition of Criminal Liability
• Dominic McGoldrick, State Identity and Genocide: The Bosnian Genocide Case
• Harry H.G. Post, Explosive Remnants of the War between Eritrea and Ethiopia
• Dino Kritsiotis, International Law and the Violence of Non-State Actors
• David Anderson, The ‘Disordered Medley’ of International Tribunals And the Coherence of International Law
• Elena Katselli, Countermeasures: Concept and Substance in the Protection of Collective Interests
• J.G. Merrills, Does the Optional Clause Still Matter?
• Sarah Williams, Internationalized Tribunals: A Search for Their Legal Bases
• Nigel D. White, The Road to Kandahar: British Military Interventions and International Law
• K.H. Kaikobad, Non Consensual Aerial Surveillance in the Airspace over the Exclusive Economic Zone for Military and Defence Purposes

New Issue: Fordham International Law Journal

The latest issue of the Fordham International Law Journal (Vol. 32, no. 6, June 2009) is out. Contents include:

• David M. Crane, "Back to the Future" - Reflections on the Beginning of the Beginning: International Criminal Law in the Twenty-First Century
• Jorge Contesse & Jeanmarie Fenrich, "It's Not OK": New Zealand's Efforts to Eliminate Violence Against Women

New Issue: Vanderbilt Journal of Transnational Law

The latest issue of the Vanderbilt Journal of Transnational Law (Vol. 42, no. 4, October 2009) is out. Contents include:

• Symposium: Mounting Tensions and Melting Ice: Exploring the Legal and Political Future of the Arctic
• Peter C. Marshall, Jr., Symposium Introduction
• Hans Corell, The Arctic: An Opportunity to Cooperate and to Demonstrate Statesmanship
• Mary Beth West, Arctic Warning: Environmental, Human, and Security Implications
• James Kraska, Creeping Uniqueness in the Northwest Passage and the Global Order of the Oceans
• Suzanne LaLonde, Arctic Waters: Cooperation or Competition
• John E. Noyes, Dispute Settlement and the Outer Limits on the Continental Shelf
• Vladimir Jares, The Continental Shelf Beyond 200 M, the Work of the Commission on the Arctic
• Jonathan D. Greenberg, Political Ecology of the Arctic

Nollkaemper: The Reception by the International Court of Justice of Decisions of Domestic Courts

André Nollkaemper (Univ. of Amsterdam - Amsterdam Center for International Law) has posted The Reception by the International Court of Justice of Decisions of Domestic Courts (Federalismi.it, Rivista di Diritto Pubblico Italiano, Comunitario e Comparato, n. 15/2009). Here's the absract:

This paper examines the practice of the ICJ in its reception of decisions of national courts. It demonstrates that while the ICJ continues to recognize the formal separation between international law and domestic law, the practice of the Court is not based on a rigid dichotomy between the international and the domestic spheres. In particular cases, decisions of domestic courts play a role in judgments of the Court, not only as fact but also in terms of legal effects. Indeed, the dominant ‘decisions of domestic courts as facts’ doctrine fails to capture the variety of the ways in which the Court treats such decisions.

New Issue: Human Rights Law Review

The latest issue of the Human Rights Law Review (Vol. 9, no. 4, 2009) is out. Contents include:

• Hugh King, The Extraterritorial Human Rights Obligations of States
• Amrei Müller, Limitations to and Derogations from Economic, Social and Cultural Rights
• Dominic McGoldrick, Accommodating Muslims in Europe: From Adopting Sharia Law to Religiously Based Opt Outs from Generally Applicable Laws

Nollkaemper: The Power of Secondary Rules of International Law to Connect the International and the National Legal Orders

André Nollkaemper (Univ. of Amsterdam - Amsterdam Center for International Law) has posted The Power of Secondary Rules of International Law to Connect the International and the National Legal Orders (in Multi-Sourced Equivalent Norms, Y. Shany, et. al. eds., forthcoming). Here's the abstract:

This papers examines on what basis, and to what extent, secondary rules of international law, notably those relating to interpretation and reparation, may help to moderate the divergence between international norms, on the one hand, and the national manifestations of such norms, on the other. To the extent that secondary rules indeed can induce convergence between international and national norms, they also may reduce divergence of interpretations between states. As such, the paper contributes to the debate on the phenomenon of fragmentation in international law.

New Issue: Netherlands Quarterly of Human Rights

The latest issue of the Netherlands Quarterly of Human Rights (Vol. 27, no. 3, 2009) is out. Contents include:

• Morris Kiwinda Mbondenyi, Invigorating the African System on Human and Peoples’ Rights Through Institutional Mainstreaming and Rationalisation
• Joke Swiebel & Dennis Van Der Veur, Hate Crimes Against Lesbian, Gay, Bisexual and Transgender Persons and the Policy Response of International Governmental Organisations
• Antenor Hallo de Wolf & James Watson, Navigating the Boundaries of Prevention: The Role of OPCAT in Deportations with Diplomatic Assurances

Workshop: Becker Lorca

Arnulf Becker Lorca (King's College London - Law) will give a talk today at the Lauterpacht Centre for International Law Friday Lunchtime Lecture Series on "'Peripheral' International Lawyers, 1900-1950: Alvarez and Others."

Kumar: European Border Measures and Trade in Generic Pharmaceuticals: Issues of TRIPs, Doha Declaration and Public Health

Shashank Kumar (National Law Univ., Jodhpur) has posted European Border Measures and Trade in Generic Pharmaceuticals: Issues of TRIPs, Doha Declaration and Public Health (International Trade Law & Regulation, Vol. 15, No. 6, pp.176-184, 2009). Here's the abstract:

This work seeks to analyze European efforts at promoting higher standards of IP protection and enforcement through border measures. In doing so, it traces the evolution of EC Regulation 1383/03 and identifies trends in its systemic enforcement against in-transit generic pharmaceuticals. The analysis of the European border measures reveals that in addition to the relevant law, the EC has undertaken several bilateral and multilateral efforts to supplement its maximalist agenda in border enforcement. Further, it raises some important issues relating to the interpretation of the TRIPS Agreement, the jurisprudential implications of the Doha Declaration and the human right to health.

Jain: The Khmer Rouge Tribunal Paves the Way for Additional Investigations

Neha Jain (Max Planck Institute for Foreign and International Criminal Law) has posted an ASIL Insight on The Khmer Rouge Tribunal Paves the Way for Additional Investigations.

Gross: Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict

Michael L. Gross (Univ. of Haifa - International Relations) has published Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict (Cambridge Univ. Press 2010). Here's the abstract:

Asymmetric conflict is changing the way that we practise and think about war. Torture, rendition, assassination, blackmail, extortion, direct attacks on civilians, and chemical weapons are all finding their way to the battlefield despite longstanding international prohibitions. This book offers a practical guide for policy makers, military officers, students, and others who ask such questions as: Do guerillas deserve respect or long jail sentences? Are there grounds to torture guerillas for information or assassinate them on the battlefield? Is there room for nonlethal weapons to subdue militants and safeguard the lives of noncombatants? Who are noncombatants in asymmetric war? What is the status of civilians who shelter and aid guerillas? And, do guerillas have any right to attack civilians, particularly those who aid and shelter members of the stronger army? If one side can expand the scope of civilian vulnerability, then why can’t the other?

The Aleinikoff Appointment

T. Alexander Aleinikoff, Dean of the Georgetown University Law Center, has been appointed U.N. Deputy High Commissioner for Refugees. According to the UNHCR news item, Aleinikoff's "appointment, in consultation with UN Secretary-General Ban Ki-moon, was announced following an extensive search and interviews with several candidates." Of course, that depends on what the phrase "extensive search" means, as the position of Deputy High Commissioner for Refugees is, in practice, invariably given to an American. Aleinikoff's predecessor was L. Craig Johnstone, who served for many years in the State Department. Johnstone took over from Wendy Chamberlin, also a former State Department official. Chamberlin replaced Mary Ann Wyrsch, who replaced Frederick Barton, both of whom had previously held positions in the U.S. Government. In 1999, Barton replaced Gerald Walzer, an Austrian and a long-time UNHCR official, who had held the position since 1993. But Walzer's appointment was an anomaly, the result of a deal made between the United States and Secretary-General Boutros-Ghali that gave other U.N. positions to the United States in exchange for the refugees slot. Walzer had replaced M. Douglas Stafford, an American. See Al Kamen, A Power Drain at the United Nations?, Washington Post, June 21, 1993, at A15. I review the practice of informal control of high-level appointments at international organizations in Representation and Power in International Organization: The Operational Constitution and Its Critics, published earlier this year in the American Journal of International Law. (Because of space constraints, I was unable to discuss in that article the informal agreement regarding the Deputy position at UNCHR described here.)

Let me be clear that I point this out not to criticize Aleinikoff's appointment itself. He is clearly well-qualified for the position in a number of ways. And there may be advantages to having an American in the Deputy's office. So I make no claim regarding the appropriateness of Aleinikoff's selection or the informal agreement that apparently limited the pool of candidates. I point this out, simply, because it is worth knowing how things actually work (the press releases and news reports will not or cannot provide this information), so that an honest conversation can be had regarding current and future practice.

Lantschner: Soft jurisprudence im Minderheitenrecht

Emma Lantschner has published Soft jurisprudence im Minderheitenrecht: Standardsetzung und Konfliktbearbeitung durch Kontrollmechanismen bi- und multilateraler Instrumente (Nomos 2009). Here's the abstract:

Die Arbeit geht der Frage nach, inwiefern sich die multilaterale und die bilaterale Ebene in ihren Bemühungen im Bereich des Minderheitenschutzes hinsichtlich der standardsetzenden und der konfliktbearbeitenden Funktion ergänzen. Im Zentrum der Untersuchung stehen dabei die Kontrollmechanismen bi- und multilateraler Instrumente. Auf der Seite der multilateralen Mechanismen nimmt eine Analyse der Stellungnahmen des Beratenden Ausschusses für das Rahmenübereinkommen des Europarats zum Schutz nationaler Minderheiten breiten Raum ein. Auf der bilateralen Ebene werden hauptsächlich die Gemischten Kommissionen zur Überwachung der bilateralen Verträge, die Ungarn mit seinen Nachbarstaaten abgeschlossen hat, untersucht.

Eine umfassende monographische Bearbeitung, die für die einzelnen im Rahmenübereinkommen gewährten Rechte anhand der Stellungnahmen des Beratenden Ausschusses Standards ermittelt, gab es bislang nicht. Auch war es aufgrund der dürftigen Quellenlage zu den Tätigkeiten und Ergebnissen von Gemischten Kommissionen bisher schwierig, deren Funktionen und Wirkung zu untersuchen. Im Zuge der Recherchen an dieser Arbeit konnten neue Materialien zugänglich gemacht und verarbeitet werden. Die vorliegende Publikation schließt damit zwei Lücken in der bisher bestehenden Literatur zum Minderheitenrecht.

Lecture: Okowa on "International Law and the Protection of Natural Resources in Situations of Armed Conflict"

Phoebe Okowa (Queen Mary Univ. of London - Law) will deliver a lecture today as part of the UCL Laws Current Legal Problems Lecture Series on "International Law and the Protection of Natural Resources in Situations of Armed Conflict."

Workshop: Bates

Ed Bates (Univ. of Southampton - Law) will give a talk today at the Oxford Public International Law Discussion Group on "The European Court of Human Rights: The First Half-Century."

Soohoo, Albisa, & Davis: Bringing Human Rights Home: A History of Human Rights in the United States

Cynthia Soohoo (Center for Reproductive Rights), Catherine Albisa (National Economic and Social Rights Initiative), & Martha F. Davis (Northeastern Univ. - Law) have published an abridged edition of Bringing Human Rights Home: A History of Human Rights in the United States (Univ. of Pennsylvania Press 2009). This is another volume in the series Pennsylvania Studies in Human Rights. Contents include:

• Paul Gordon Lauren, A Human Rights Lens on U.S. History: Human Rights at Home and Human Rights Abroad
• Elizabeth Borgwardt, FDR's Four Freedoms and Wartime Transformations in America's Discourse of Rights
• Carol Anderson, A "Hollow Mockery": African Americans, White Supremacy, and the Development of Human Rights in the United States
• Hope Lewis , "New" Human Rights? U.S. Ambivalence Toward the International Economic and Social Rights Framework
• Dorothy Q. Thomas, Against American Supremacy: Rebuilding Human Rights Culture in the United States
• Catherine Albisa, Economic and Social Rights in the United States: Six Rights, One Promise
• Cynthia Soohoo, Human Rights and the Transformation of the "Civil Rights" and "Civil Liberties" Lawyer
• Margaret Huang, "Going Global": Appeals to International and Regional Human Rights Bodies
• Martha F. Davis, Thinking Globally, Acting Locally: States, Municipalities, and International Human Rights
• Wendy Patten, The Impact of September 11 and the Struggle Against Terrorism on the U.S. Domestic Human Rights Movement
• Kathryn Sikkink, Bush Administration Noncompliance with the Prohibition on Torture and Cruel and Degrading Treatment
• Lance CompaTrade Unions and Human Rights

New Issue: ASA Bulletin

The latest issue of the ASA Bulletin (Vol. 27, no. 4, 2009) is out. Contents include:

• Alexander J. Bělohlávek, West Tankers as a Trojan Horse with Respect to the Autonomy of Arbitration Proceedings and the New York Convention 1958
• Gabrielle Nater-Bass, Class Action Arbitration: A New Challenge?
• Tetiana Bersheda, Les clauses d’arbitrage statutaires en droit suisse
• Philipp Ritz, Pitfalls to Avoid When Drafting Arbitration Clauses in India-Related Contracts

von Bogdandy et al.: The Exercise of Public Authority by International Institutions

Armin von Bogdandy, Rüdiger Wolfrum, Jochen von Bernstorff, Philipp Dann, & Matthias Goldmann have published The Exercise of Public Authority by International Institutions: Advancing International Institutional Law (Springer 2010). The table of contents is available here. Here's the abstract:

This book develops a framework for the legal analysis of global governance phenomena. Today, international institutions are responsible for more and more governance activities which cover a wide range of issue areas and which affect individuals and governments alike. So far, there exists no legal, doctrinal approach to such phenomena. The dominant social science approach is unsatisfactory from a normative standpoint: it does not allow to single out those activities on the part of international institutions which compromise individual or collective self-determination. To this end, the book proposes the concept of "international public authority." In a series of thematic studies, it identifies important hard and soft mechanisms that constitute unilateral exercises of power by the institutions of global governance. Cross-cutting analyses single out procedural and substantive principles which could become the corner stones of the further development of international institutional law.

Marimon et al.: Multilevel Judicial Governance between Global and Regional Economic Integration Systems: Institutional and Substantive Aspects

Ramon Marimon, James H. Mathis, Roderick E. Abbott, Ernst-Ulrich Petersmann, & Nikos Lavranos (all, European Univ. Institute) have posted Multilevel Judicial Governance between Global and Regional Economic Integration Systems: Institutional and Substantive Aspects. Here's the abstract:

The Brazilian Tyres case that was adjudicated by both MERCOSUR and WTO dispute settlement bodies illustrates the issues raised by multilevel judicial governance. The relationship between regional and global trading systems has become increasingly complex, raising the question whether Article XXIV GATT is still sufficient. Similarly, the way Article XX GATT is applied to balance trade and non-trade issues is increasingly disputed. Underlying these issues are more fundamental aspects of delivering justice while at the same time preserving the world trading system. In his contribution Lavranos takes the view that the WTO Appellate Body failed to show sufficient respect to the MERCOSUR dispute settlement body decision. More specifically, Lavranos argues that trade interests were wrongly given primacy over the health and environmental concerns of Brazil. Mathis’ paper discusses in more detail Article XXIV GATT and the question whether this could serve as an exception for Brazil being a member of MERCOSUR to give precedence over its GATT obligations. Mathis also analyzes Article XX GATT in this regard, concluding that Brazil finally is presented with the option to comply with its own regional law and compensate its WTO partners accordingly, or to comply with the WTO ruling and disregard its own regional law. Abbott’s indicates some of the lessons to be drawn from past experience in applying Art. XXIV during the 1970s and 1980s, as well as some problems associated with Art. XX, and looks ahead to an important future debate - potentially - on trade and non-trade factors: the measures that may be taken in association with measures to reduce greenhouse gas emissions and to control the effects of global warming and climate change. Finally, Petersmann’s outlook criticizes Lavranos critique on the Appellate Body by arguing that at the end of day justice was delivered according to the present WTO rules. In sum, this collection of very different views on multilevel judicial governance offer a tour d’horizon, which hopefully stimulates further discussion and analysis.

Boulle: The Law of Globalization: An Introduction

Laurence Boulle has published The Law of Globalization: An Introduction (Kluwer Law International 2009). Here's the abstract:

There is a growing clamor ― particularly from the main beneficiaries of globalization ― that rules need to be established to govern the international economy, with a specific focus on questions such as copyright violations, trade sanctions, and protections for increased foreign investment.

While there is little doubt that globalization is a major contributor to changes in the definition, boundaries and nature of law, the question remains as to how much law and regulation from different sources is compatible with the assumptions of economic globalization. From a market perspective the point at which state law and regulation move from ‘legitimate’ non-economic interests into the ‘illegitimate’ restriction of trade and investment will materialize much sooner than it will from other perspectives. These theoretical questions arise in concrete form for the decisions of international economic institutions such as the WTO.

This thoughtful work focuses on the different forms of law which create the legal infrastructure of economic globalization and on how they interact with one another. It also explains how law is used both to maintain and oppose aspects of globalization. In addition it evaluates the governance of the global political economy in terms of the standards of the Rule of Law.

Tienhaara: The Expropriation of Environmental Governance

Kyla Tienhaara (Australian National Univ.) has published The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy (Cambridge Univ. Press 2009). Here's the abstract:

Recent years have seen an explosive increase in investor-state disputes resolved in international arbitration. This is significant not only in terms of the number of disputes that have arisen and the number of states that have been involved, but also in terms of the novel types of dispute that have emerged. Traditionally, investor-state disputes resulted from straightforward incidences of nationalisation or breach of contract. In contrast, modern disputes frequently revolve around government measures taken to further public policy goals, such as the protection of the environment. This book explores the outcomes of several investor-state disputes over environmental policy. In addition to examining the pleadings of parties and decisions of arbitral tribunals in disputes that have been resolved in arbitration, the influence that investment arbitration has had in negotiated outcomes to conflicts is also explored.

de Guchteneire, Pecoud, & Cholewinski: Migration and Human Rights

Paul de Guchteneire (UNESCO), Antoine Pecoud (UNESCO), & Ryszard Cholewinski (International Organization for Migration) have published Migration and Human Rights: The United Nations Convention on Migrant Workers' Rights (Cambridge Univ. Press 2009). Here's the abstract:

The UN Convention on Migrant Workers’ Rights is the most comprehensive international treaty in the field of migration and human rights. Adopted in 1990 and entered into force in 2003, it sets a standard in terms of access to human rights for migrants. However, it suffers from a marked indifference: only forty states have ratified it and no major immigration country has done so. This highlights how migrants remain forgotten in terms of access to rights. Even though their labour is essential in the world economy, the non-economic aspect of migration – and especially migrants’ rights – remain a neglected dimension of globalisation. This volume provides in-depth information on the Convention and on the reasons behind states’ reluctance towards its ratification. It brings together researchers, international civil servants and NGO members and relies upon an interdisciplinary perspective that includes not only law, but also sociology and political science.

Dan-Cohen: Skirmishes on the Temporal Boundaries of States

Meir Dan-Cohen (Univ. of California, Berkeley - Law) has posted Skirmishes on the Temporal Boundaries of States (Law and Contemporary Problems, Vol. 72, p. 95, Spring 2009). Here's the abstract:

This paper focuses on the special difficulties of resolving collective disputes, specifically among states, that result from past mischief. Past events are fixed, casting a permanent shadow. So how can collectivities cope with the “dead weight” of history and address past-oriented grievances? In considering this question, I introduce the notion of a state’s temporal boundary, and argue that changes in this boundary, analogous to the more familiar changes in territorial borders, can lift the shadow of the past and relieve past-oriented grievances. I then connect this conceptual framework to the distinction between history and memory as two different modalities of relating to the past. I maintain that a proper understanding of a state’s relationship to the past, and in particular the possibility of changes in a state’s temporal boundaries, offer a way to retain historical knowledge of past wrongs without the rancor and acrimony that mark this knowledge when it assumes the form of collective memory.

In the same issue (a symposium on on "Group-Conflict Resolution: Sources of Resistance to Reconciliation"), John C.P. Goldberg (Harvard Univ. - Law) comments.

Osiatyński: Human Rights and Their Limits

Wiktor Osiatyński (Central European Univ. - Legal Studies) has published Human Rights and Their Limits (Cambridge Univ. Press 2009). Here's the abstract:

Human Rights and Their Limits shows that the concept of human rights has developed in waves: each call for rights served the purpose of social groups that tried to stop further proliferation of rights once their own goals were reached. While defending the universality of human rights as norms of behavior, Osiatyński admits that the philosophy on human rights does not need to be universal. Instead he suggests that the enjoyment of social rights should be contingent upon the recipient’s contribution to society. He calls for a ‘soft universalism’ that will not impose rights on others but will share the experience of freedom and help the victims of violations. Although a state of unlimited democracy threatens rights, the excess of rights can limit resources indispensable for democracy. This book argues that, although rights are a prerequisite of freedom, they should be balanced with other values that are indispensable for social harmony and personal happiness.

New Volume: Israel Yearbook on Human Rights

The latest volume of the Israel Yearbook on Human Rights (Vol. 39, 2009) is out. Contents include:

• International Workshop: "The War in Afghanistan: A Legal Analysis" - United States Naval War College, Newport, Rhode Island , 25-27 June 2008
• Charles Garraway, Afghanistan and the Nature of Conflict
• Geoffrey Corn, Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed Conflict, Al Qaeda, and the Limits of the Associated Militia Concept
• John F. Murphy, Afghanistan, Hard Choices and the Future of International Law
• Michael N. Schmitt, Targeting and International Humanitarian Law in Afghanistan
• Gary D. Solis, Law of War Issues in Ground Hostilities in Afghanistan
• Matthew C. Waxman, United Nations Detention Operations in Afghanistan and the Law of Armed Conflict
• Marco Sassòli, The International Legal Framework for Stability Operations: When May International Forces Attack or Detain Someone in Afghanistan
• David Turns, Jus ad Pacem in Bello? Afghanistan, Stability Operations and International Law Relating to Armed Conflict
• Kenneth Watkin, Stability Operations: A Guiding Framework for “Small Wars” and Other Conflicts of the 21st Century?
• Eric Talbot Jensen & Amy M. Pomeroy, Afghanistan Legal Lessons Learned: Army Rule of Law Operations
• Sean D. Murphy, The International Legality of U.S. Military Cross-Border Operations from Afghanistan into Pakistan
• Yoram Dinstein, Concluding Remarks on Terrorism and Afghanistan
• Miscellaneous Issues
• Wolff Heintschel von Heinegg, The International Legal Framework of Submarine Operations
• Daphna Shraga, The Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law: A Decade Later

Corn: Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict

Geoffrey S. Corn (South Texas College of Law) has posted Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict (Journal of International Humanitarian Legal Studies, forthcoming). Here's the abstract:

One of the most complex contemporary debates related to the regulation of armed conflict is the relationship between international humanitarian law (or the law of armed conflict) and international human rights law. Since human rights experts first began advocating for the complimentary application of these two bodies of law, there has been a steady march of human rights application into an area formerly subject to the exclusive law of armed conflict regulation. While the legal aspects of this debate are both complex and fascinating, like all areas of conflict regulation the outcome must ultimately produce guidelines that can be translated into an effective operational framework for war-fighters. In an era of an already complex and often confused battle space, there can be little tolerance for adding complexity and confusion to the rules that war-fighters must apply in the execution of their missions. Instead, clarity is essential to aid them in navigating this complexity.

This article will explore this debate from a military operational perspective. It asserts the invalidity of extreme views in this complementarity debate, and that the inevitable invocation of human rights obligations in the context of armed conflict necessitates a careful assessment of where symmetry between these two sources of law is operationally logical and where that logic dissipates. While acknowledging a legitimate role for human rights norms in relation to the treatment of noncombatants and subdued opposition personnel, I argue that these norms cannot be permitted to influence the legal framework that regulates the application of combat power against operational opponents. Preventing this intrusion is essential to balance the interest of protecting human rights with the fundamental purpose of armed hostilities – securing the prompt and efficient submission of an opponent. Perhaps the most critical premise of this article is that failing to recognize the existence of this boundary will produce a distortion of this historic authority/restraint balance at the core of the law of armed conflict – a distortion that will inevitably be perceived as operationally illogical by armed forces thereby risking the credibility of both bodies of law.

Fontanelli, Martinico, & Carrozza: Shaping Rule of Law Through Dialogue. International and Supranational Experiences

Filippo Fontanelli (Sant’Anna School of Advanced Studies), Giuseppe Martinico (Sant’Anna School of Advanced Studies), & Paolo Carrozza (Sant’Anna School of Advanced Studies) have published Shaping Rule of Law Through Dialogue. International and Supranational Experiences (Europa Law Publishing 2009). Contents include:

• Ernst-Ulrich Petersmann, ‘Constitutional Justice’ Requires Judicial Cooperation and ‘Comity’ in the Protection of ‘Rule of Law’
• Yuval Shany, Dédoublement fonctionnel and the Mixed Loyalties of National and International Judges
• Joost Pauwelyn & Luiz Eduardo Salles, Forum Shopping before International Tribunals. (Real) Concerns, (Im)Possible Solutions
• Jan Komárek, In the Court(s) We Trust? On the Need for Hierarchy and Differentiation in the Preliminary Ruling Procedure
• Nikolaos Lavranos, Revisiting Article 307 EC. The Untouchable Core of Fundamental European Constitutional Law Values and Principles
• Federico Fabbrini, Judicial Review of United Nations Counter-Terrorism Sanctions in the European Multilevel System of Human Rights Protection. A Case Study in Ineffectiveness
• Stanislas Adam, Overcoming Dissonance to Reshape Coherence. The European Court of Justice, Terrorist Lists and the Rule of Law
• Giuseppe Martinico, Preliminary Reference and Constitutional Courts. Are You in the Mood for Dialogue?
• Fulvio Cortese, ECJ and Administrative Courts in EU Member States. Towards a Common Judicial Reasoning?
• Antonella Angelini, Behrami and Saramati: When Silence Matters
• Rosa Raffaelli, The Relationship between the ICC and Other International Tribunals. An Analysis of the Lubanga Confirmation of Charges
• Jorge A. Huerta-Goldman, Trade Remedies Disputes – Reciprocal Relationship between WTO and NAFTA Tribunals
• Alberto Alemanno, The Dialogue between Judges & Experts in the EU and WTO
• Filippo Fontanelli, Whose Margin Is It? State Discretion and Judges’ Appreciation in the Necessity Quicksand
• Gianluigi Palombella, Global Threads: Weaving the Rule of Law and the Balance of Legal Software