Roberts: Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States

Anthea Roberts (London School of Economics - Law) has posted Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States (American Journal of International Law, forthcoming). Here's the abstract:

A key problem in the investment treaty field is that the balance of interpretive power between treaty parties and tribunals is askew. States entering into investment treaties establish dual roles for themselves as treaty parties (with an interest in interpretation) and actual or potential respondents in investor-state disputes (with an interest in avoiding liability). By viewing states primarily as respondents rather than also as treaty parties, investment tribunals often overlook or undervalue the relevance of the treaty parties' subsequent agreements and practice. This article seeks to redress this imbalance by proposing an interpretive approach that takes better account of such evidence.

ILR: 2009 Report

A short report on the blog over the past year.

First, statistics. During 2009, the blog had 1318 posts, 174,989 visitors, and 247,649 page loads. That works out to 3.6 posts, 479 visitors, and 678 page loads per day. These were good gains over the previous year, but those numbers don't fully describe the overall trajectory. At the height of the fall semester, readership averaged approximately 800 visitors and over 1000 page loads per weekday, new highs. An informal survey indicates that ILR is one of the most popular international law blogs, perhaps second only to Opinio Juris (at least based on the numbers).

Second, content. Regular readers will have noted that I am no longer posting on cases and similar developments. Plenty of other blogs cover these matters, and these posts, though useful and fun to write, were always somewhat peripheral to the core mission of the blog - scholarship. I am thankful to the many readers who send me information on publications and scholarly events. Please continue doing so.

As we move into the new year, I welcome, as always, your suggestions for the blog's improvement.

New Issue: New York University Journal of International Law and Politics

The latest issue of the New York University Journal of International Law and Politics (Vol. 41, no. 4, Summer 2009) is out. Contents include:

• Symposium: The Normalizing of Adjudication in Complex International Governance Regimes: Patterns, Possibilities, and Problems
• Cesare P.R. Romano, Deciphering the Grammar of the International Jurisprudential Dialogue
• Andrea K. Schneider, Bargaining in the Shadow of (International) Law: What the Normalization of Adjudication in International Governance Regimes Means for Dispute Resolution
• Anne-Charlotte Martineau, The Politics of Normalization
• Stephen Vasciannie, The Decision of the Judicial Committee of the Privy Council in the Lambert Watson Case from Jamaica on the Mandatory Death Penalty and the Question of Fragmentation
• Laurence R. Helfer & Karen J. Alter, The Andean Tribunal of Justice and Its Interlocutors: Understanding Preliminary Reference Patterns in the Andean Community
• Eyal Benvenisti & George W. Downs, Court Cooperation, Executive Accountability, and Global Governance
• Ruti Teitel & Robert Howse, Cross-Judging: Tribunalization in a Fragmented But Interconnected Global Order
• José E. Alvarez, Three Responses to "Proliferating" Tribunals

Symposium: International Criminal Court

The current two issues of the New Criminal Law Review (Vol. 12, nos. 3 & 4, Summer & Fall 2009) contain a symposium on the International Criminal Court. Contents include:

• Kevin Jon Heller, Introduction
• Neil Boister, Treaty Crimes, International Criminal Court?
• Roger S. Clark, Building on Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court: Weapons and Methods of Warfare
• Robert Cryer, Royalism and the King: Article 21 of the Rome Statute and the Politics of Sources
• Jens David Ohlin, Joint Criminal Confusion
• Elies van Sliedregt, Article 28 of the ICC Statute: Mode of Liability and/or Separate Offense?
• Mohamed Elewa Badar, Dolus Eventualis and the Rome Statute Without It?
• Olympia Bekou, A Case for Review of Article 88, ICC Statute: Strengthening a Forgotten Provision
• Ilias Bantekas, The Need to Amend Article 12 of the ICC Statute: Remedying the Effects of Multilateral Treaties upon Third Parties
• Cedric Ryngaert, The International Criminal Court and Universal Jurisdiction: A Fraught Relationship
• Héctor Olásolo, Systematic and Casuistic Approaches to the Role of Victims in Criminal Proceedings Before the International Criminal Court
• Michael Bohlander, Pride and Prejudice or Sense and Sensibility? A Pragmatic Proposal for the Recruitment of Judges at the ICC and Other International Criminal Courts
• Kai Ambos, Confidential Investigations (Article 54(3)(E) ICC Statute) vs. Disclosure Obligations: The Lubanga Case and National Law
• Alexander Zahar, International Court and Private Citizen
• Göran Sluiter, “I Beg You, Please Come Testify”—The Problematic Absence of Subpoena Powers at the ICC

UPDATE (8:48AM): I just noticed that shortly before I posted the above last night Kevin Jon Heller posted on Opinio Juris an explanation of the genesis of this symposium, which he edited.

New Issue: Vanderbilt Journal of Transnational Law

The latest issue of the Vanderbilt Journal of Transnational Law (Vol. 42, no. 5, November 2009) is out. Contents include:

• N. Jansen Calamita, Sanctions, Countermeasures, and the Iranian Nuclear Issue
• Kristen E. Eichenseher, Treason in the Age of Terrorism: An Explanation and Evaluation of Treason's Return in Democratic States
• Simon Chesterman, UNaccountable? The United Nations, Emergency Powers, and the Rule of Law
• Rafael Domingo, The Crisis of International Law

Curci: The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property

Jonathan Curci has published The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property (Cambridge Univ. Press 2010). Here's the abstract:

The relationships between international intellectual property treaties, the United Nations international environmental treaties (first and foremost the Convention on Biological Diversity), the relevant customary norms and soft law form a complex network of obligations that sometimes conflict with each other. The first set of treaties creates private rights while the latter affirms the sovereignty rights of States over genetic resources and related knowledge and creates international regimes of exploitation of the same. Jonathan Curci proposes solutions to the conflicts between treaties through the concept of ‘mutual supportiveness’, including the construction of a national-access and benefit-sharing regime, mandatory contractual provisions in relevant international contracts, a defensive protection when genetic resource-related traditional knowledge is unjustly patented through the analysis of the concepts of ‘ordre public and morality’, ‘certificate of origin’ in the patent application and ‘novelty-destroying prior art’ and positive protection through existing and sui generis intellectual property rights and misappropriation regimes.

Lavranos: On Misguided Judicial Deference by the ECJ and ECRTHR

Nikos Lavranos (The Hague Univ. - Law) has posted On Misguided Judicial Deference by the ECJ and ECRTHR (in Dispute Resolution, C. Baudenbacher ed., German Law Publishers, 2009). Here's the abstract:

This contribution analyzes several cases in which both the ECJ and ECrtHR showed a misguided deference by not actually deciding the case but rather rendering unconvincing judgments. It is argued that in highly sensitive case, courts should instead refuse to be abused by parties for resolving disputes that should rather be solved by political decisions.

Delassus: Du droit applicable à bord de la Station Spatiale Internationale

Sylvain Delassus has published Du droit applicable à bord de la Station Spatiale Internationale (Persée 2009). Here's the abstract:

Le droit de la Station Spatiale Internationale est inscrit dans " l'Accord entre le Gouvernement du Canada, les membres de l'Agence Spatiale Européenne, le Gouvernement du Japon, le Gouvernement de la Fédération de Russie et le Gouvernement des Etats-Unis d'Amérique sur la coopération relative à la Station Spatiale Internationale Civile ". Daté de 1988, cet Accord ne sera finalisé qu'en 1998 et concrétisé en 2004. Ce droit - d'essences intergouvernementale et conventionnelle - se place dans la lignée du droit onusien d'inspiration juridique maritime, ou sous l'édiction de droits nationaux variés.

Milanović: The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity

Marko Milanović (Belgrade Centre for Human Rights) has posted The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity (Goettingen Journal of International Law, Vol. 1, No. 3, p. 519, 2009). Here's the abstract:

The article provides a critical review of the Human Rights Committee's views in Sayadi v. Belgium, a case dealing with United Nations Security Council (UNSC) terrorist blacklists. The case raised many complex issues of international law, most notably the question whether UNSC resolutions can prevail over human rights treaties by virtue of Art. 103 of the UN Charter. This issue – one of truly fundamental importance – has cropped up in several important recent cases which either addressed it or avoided it, including Kadi before the courts of the European Union, Al-Jedda before the UK House of Lords, and Behrami before the European Court of Human Rights. Regrettably, the Committee's decision did not do justice to the complexity and the gravity of the matters raised before it, as it failed to tackle the norm conflict issue head on and ignored the Charter's supremacy clause altogether. Such an approach advances neither the cause of human rights, nor the coherence of international law as a legal system.

Martha: Tax Treatment of International Civil Servants

Rutsel Silvestre J. Martha (General Counsel, International Fund for Agricultural Development) has published Tax Treatment of International Civil Servants (Martinus Nijhoff Publishers 2010). Here's the abstract:

What sets the tax treatment of the international civil servants apart are the legal considerations derived from public international law. Often the matter is approached from the perspective of privileges and immunities. However, when regarded as a concern with the equal pay for equal work it boils down to employment conditions that need to be satisfied by international organisations due to the peculiar legal setting in which international civil servants discharge their duties. By adding a perspective from the jurisprudence of international (administrative) tribunals to the current scholarship, the present study – the first of its kind - purports to contribute to a better understanding of the matter of taxation of the salary, emoluments and pensions of employees of international organizations.

New Issue: International Journal of Human Rights

The latest issue of the International Journal of Human Rights (Vol. 13, no. 5, 2009) is out. Contents include:

• S. Eban Ebai, The right to self-determination and the anglophone Cameroon situation
• Omer Yousif Elagab, Indicting the Sudanese President by the ICC: Resolution 1593 revisited
• Sonja Grover, Child rape as a crime against humanity: challenging the United States Supreme Court reasoning in Kennedy v. Louisiana
• Ron House, The death penalty and the Principle of Goodness
• Mike A. Yanou, The local courts, decentralisation and good governance: the case of the English speaking provinces of Cameroon
• Emilie Secker, Expanding the concept of participatory rights
• Biswajit Ghosh, Trafficking in women and children in India: nature, dimensions and strategies for prevention

Stewart & Sanchez Badin: The World Trade Organization and Global Administrative Law

Richard B. Stewart (New York Univ. - Law) & Michelle Ratton Sanchez Badin (FGV - São Paulo Law School) have posted The World Trade Organization and Global Administrative Law (in Constitutionalism, Multilevel Trade Governance and Social Regulation, Christian Joerges & Ernst-Ulrich Petersmann eds.). Here's the abstract:

In response to demands for greater accountability and responsiveness in global regulatory governance, global administrative law (GAL) decision-making mechanisms of transparency, participation, reason giving, and review have emerged in many global regimes, the WTO system. This paper shows how three aspects of the WTO regime can fruitfully be understood and evaluated in terms of administration and administrative law. With respect to the WTO’s internal governance, the paper argues that simultaneously strengthening the WTO administrative bodies and subjecting them to GAL procedural disciplines would establish better internal institutional balance and enhance the organization’s effectiveness and legitimacy. With respect to the vertical relation between the WTO and its members, it shows how the WTO has secured far reaching adoption of GAL disciplines by domestic regulatory administrations, to the benefit of foreign but also of domestic interests. With respect to the horizontal dimension of the WTO’s relation with other global standard-setting bodies, it argues that the WTO should make compliance with GAL procedures a condition for according WTO recognition to such bodies’ regulatory standards. The paper concludes that, overall, the application of GAL mechanisms to these different facets of trade regulatory decision making will promote accountability and responsiveness to a broader range of interests and a more cosmopolitan normative perspective. It further concludes, from the perspective of legal theory, that GAL is a more suitable and productive conceptual framework for addressing the legal dimensions of global regulatory governance than constitutionalism and other alternatives.