Abebe & Posner: Foreign Affairs Legalism: A Critique

Daniel Abebe (Univ. of Chicago - Law) & Eric A. Posner (Univ. of Chicago - Law) have posted Foreign Affairs Legalism: A Critique. Here's the abstract:

Foreign affairs legalism, the dominant approach in academic scholarship on foreign relations law, holds that courts should abandon their traditional deference to the executive in foreign relations, and that courts and Congress should take a more activist role in foreign relations than in the past. Foreign affairs legalists argue that greater judicial involvement in foreign relations would curb executive abuses and promote international law. We argue that foreign affairs legalism rests on implausible assumptions about the incentives and capacities of courts. In U.S. history the executive has given more support to international law than the judiciary or Congress has; this suggests that foreign affairs legalism would retard rather than spur the advance of international law.

Brunnée & Toope: The Responsibility to Protect and the Use of Force: Building Legality?

Jutta Brunnée (Univ. of Toronto - Law) & Stephen J. Toope (Univ. of British Columbia) have posted The Responsibility to Protect and the Use of Force: Building Legality? (Global Responsibility to Protect, forthcoming). Here's the abstract:

The rapid rise of the responsibility to protect provides us with a unique opportunity to consider the impact of a decade or so of determined norm entrepreneurship. The responsibility to protect has not yet become a binding norm of international law, and in this article we examine what factors are holding back or promoting this development. We draw on an ‘interactional’ account of international law, which focuses on three inter-locking elements. First, legal norms are social norms and as such they are connected to social practice – they must be grounded in shared understandings. Second, what distinguishes law from other types of social ordering is not so much form or pedigree, as adherence to specific criteria of legality. When norm creation meets these criteria and, third, is matched with norm application that also satisfies the legality requirements, international law will have legitimacy and generate a sense of commitment among those to whom it is addressed. After highlighting key steps in the norm building process so far, from the 2001 report of the International Commission on Intervention and State Sovereignty to the General Assembly debate in 2009, we offer a brief sketch of our theoretical framework, and employ it to examine the trajectory of the responsibility to protect norm, concluding with an assessment of its current and potential status as binding law. Although the responsibility to protect, including its potential for the collectively authorized use of force, is increasingly supported by globally shared understandings, the norm falls short on several of the legality criteria. Furthermore, given the inconsistent practice on protective use of force, no practice of legality can be said to have evolved. Proponents of the norm face a lot of hard work ahead.

Kammerhofer: Orthodox Generalists and Political Activists in International Legal Scholarship

Jörg Kammerhofer (Univ. of Erlangen-Nuremberg - Law) has posted Orthodox Generalists and Political Activists in International Legal Scholarship (in International Law in a Multipolar World, Matthew Happold ed., forthcoming). Here's the abstract:

While in general the academic climate in our field is exceptionally open and tolerant, the notion that legal scholars ought to focus on the law is not as easily accepted. Scholars working on international law are tempted by factors beyond the sum total of the positive law and cannot restrict themselves to it. At crucial junctures non-legal factors enter the argument of many writers on international law. It will be argued that the adoption of these tactics means that the likelihood of correctly cognising the law is reduced.

This paper will highlight and explain one particular aspect of this phenomenon in more depth. Today, international legal scholars can largely be classified either as ‘orthodox generalists’ or ‘political activists’ according to their approach to theoretically complex or politically sensitive questions. Scholars subconsciously adopt tactics in dealing with the influence of political pressure on their work. Consciously or subconsciously they react to these influences by adapting their perception and analysis of international law. This is not a peripheral matter: tactics such as these are decisive for the way international law is ‘handled’ on a day-to-day level.

It will be argued that if we are to catch up to the rest of legal scholarship and no longer to be regarded as apologists for foreign ministries or serve as propagators for our personal values writ large, we will have to find that self-discipline and restraint to do what we are here for - analyse the law in force - and leave the rest for others.

Call for Papers: L’eau en droit international

The Société française pour le droit international (S.F.D.I.) has issued a call for papers aimed at junior scholars for its annual conference, which will be held June 3-5, 2010, at the Université d’Orléans. The conference theme is: "L’eau en droit international." Here's the call:

Société française pour le droit international – Colloque annuel

Appel à contributions

Colloque d’Orléans, 3-4-5 juin 2010

La Société française pour le droit international (S.F.D.I.) organise son prochain colloque à l’Université d’Orléans les 3, 4 et 5 juin 2010 sur le thème de « L’eau en droit international ».

Il s’agira d’appréhender l’eau en tant que ressource, alors que les risques de pénurie à plus ou moins court terme se confirment. Le colloque permettra d’établir comment, partis d’un droit international de l’eau, les Etats sont aujourd’hui confrontés à l’émergence encore approximative d’un droit international à l’eau. Dans la perspective du droit international de l’eau (qui a l’eau pour objet), les interventions permettront d’approfondir les diverses utilisations de l’eau à des fins autres que la navigation et les principes qui les régissent. Dans la perspective du droit à l’eau (qui a l’eau comme finalité), nous nous interrogerons sur la consécration internationale d’un nouveau droit humain, alors que la denrée la plus vitale sur notre planète se raréfie de jour en jour.

Comme il est désormais de coutume dans les colloques de la Société, quatre ateliers thématiques seront organisés, au sein desquels interviendront des jeunes chercheurs.

Les quatre ateliers se dérouleront le vendredi 4 juin dans l’après-midi et porteront sur les thèmes suivants :

• 1er atelier : Les coopérations régionales liées à l’eau
• 2ème atelier : Monopoles et corruption dans les services de l’eau
• 3ème atelier : Les conflits liés à l’eau et les perspectives de développement
• 4ème atelier : Ressources en eau et protection internationale de l’environnement

Les personnes intéressées sont invitées à rédiger un bref projet d'intervention (5 pages maximum), accompagné d'un curriculum vitae. Ceux-ci doivent être adressés par courriel à frederique.coulee@gmail.com (ateliers 1, 3 et 4) et sofilemaire@wanadoo.fr (atelier 2).

Le message électronique doit être doublé d’un envoi par voie postale à :

Secrétariat du colloque SFDI L’eau en droit international

Mme Laurence Sallé

Université d'Orléans - UFR DEG

Rue de Blois - BP 6739 - 45067 Orléans Cedex 2

tél : 02 38 41 71 52 - télécopie : 02 38 41 72 10

La date limite de dépôt des candidatures est fixée au 15 mars 2010.

Les projets seront examinés par un comité scientifique ; chaque candidat sera informé de la suite donnée à sa candidature vers la mi-avril 2010.

Mutua: Just Back from the Human Rights Council

Makau W. Mutua (University at Buffalo Law School) has posted Just Back from the Human Rights Council (Proceedings of the American Society of International Law, Vol. 102, p. 329, 2008). Here's the abstract:

The piece critically looks at the transition from the UN Commission on Human Rights to the UN Human Rights Council in 2006 and questions whether the change is one of substance or form. It argues that the same paralysis that dogged the Commission will continue to afflict the Council because power politics and regional blocs - fueled by the global asymmetries of power - will not go away. The piece also contends that the charge by the West that the Commission was utterly compromised by the Third World was without merit because it was the one forum where developing could reprimand the West. The truth is that both the West and the global South used it for political purposes - the West to advance its foreign policy objectives, the South to blunt the criticism of the West and cover up its own shortcomings. The piece concludes with a call for reforming the Human Rights Council to make it truly effective and non-partisan.

Workshops: Ginsburg, Gopalan

Tom Ginsburg (Univ. of Chicago - Law) will give a talk at the University of Georgia School of Law International Law Colloquium Series on "Constitutional Convergence in Human Rights? The Reciprocal Relationship Between Human Rights Treaties and National Constitutions."

Sandeep Gopalan (National Univ. of Ireland, Maynooth - Law) will give a talk today at the Lauterpacht Centre for International Law Friday Lunchtime Lecture Series on "International Law and the Agency Problem: Insights from Economic Theory."

New Issue: Human Rights Law Review

The latest issue of the Human Rights Law Review (Vol. 10, no. 1, 2010) is out. Contents include:

• Richard Carver, A New Answer to an Old Question: National Human Rights Institutions and the Domestication of International Law
• Sylvie Langlaude, On How to Build a Positive Understanding of the Child’s Right to Freedom of Expression
• Paul Johnson, ‘An Essentially Private Manifestation of Human Personality’: Constructions of Homosexuality in the European Court of Human Rights
• Julie Ringelheim, Minority Rights in a Time of Multiculturalism—The Evolving Scope of the Framework Convention on the Protection of National Minorities

New Issue: European Journal of International Law

The latest issue of the European Journal of International Law (Vol. 20, no. 4, November 2009) is out. Contents include:

• JHHW, Editorial: Book Reviewing and Academic Freedom
• EJIL: Debate! Anniversary Edition
• Rebecca LaForgia, The Politics of International Law – Twenty Years Later: A Reply to Martti Koskenniemi
• Alexander Somek, The Concept of ‘Law’ in Global Administrative Law: A Reply to Benedict Kingsbury
• Ming-Sung Kuo, The Concept of ‘Law’ in Global Administrative Law: A Reply to Benedict Kingsbury
• Nikolaos Lavranos, National Courts, Domestic Democracy, and the Evolution of International Law: A Reply to Eyal Benvenisti and George Downs
• Jacob Katz Cogan, National Courts, Domestic Democracy, and the Evolution of International Law: A Reply to Eyal Benvenisti and George Downs
• Tom Ginsburg, National Courts, Domestic Democracy, and the Evolution of International Law: A Reply to Eyal Benvenisti and George Downs
• Eyal Benvenisti & George W. Downs, National Courts, Domestic Democracy, and the Evolution of International Law: A Rejoinder to Nikolaos Lavranos, Jacob Katz Cogan and Tom Ginsburg
• Amrita Kapur, The Rise of International Criminal Law: Intended and Unintended Consequences: A Reply to Ken Anderson
• Federico Sperotto, The Use of Force against Terrorists: A Reply to Christian J. Tams
• Kimberley N. Trapp, The Use of Force against Terrorists: A Reply to Christian J. Tams
• Christian J. Tams, The Use of Force against Terrorists: A Rejoinder to Federico Sperotto and Kimberley N. Trapp
• Richard H. Steinberg , The Hidden World of WTO Governance: A Reply to Andrew Lang and Joanne Scott
• Andrew Lang & Joanne Scott, The Hidden World of WTO Governance: A Rejoinder to Richard H. Steinberg
• Jürgen Kurtz, Access to Justice, Denial of Justice and International Investment Law: A Reply to Francesco Francioni
• Robert Howse & Efraim Chalamish, The Use and Abuse of WTO Law in Investor-State Arbitration: A Reply to Jürgen Kurtz
• Jürgen Kurtz, The Use and Abuse of WTO Law in Investor-State Arbitration: Competition and its Discontents: A Rejoinder to Robert Howse and Efraim Chalamish
• Symposium: The Codification of the Crime of Aggression
• Andreas Paulus, Introduction
• Roger S. Clark, Negotiating Provisions Defining the Crime of Aggression, its Elements and the Conditions for ICC Exercise of Jurisdiction Over It
• Andreas Paulus, Second Thoughts on the Crime of Aggression
• Claus Kreß, Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus
• Sean D. Murphy, Aggression, Legitimacy and the International Criminal Court
• Marking the Anniversary of the Genocide Convention
• Sergey Sayapin, Raphael Lemkin: A Tribute
• Ana Filipa Vrdoljak, Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law
• Amabelle C. Asuncion, Pulling the Stops on Genocide: The State or the Individual?
  Article
• Sarah Miller, Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention

New Issue: Revue Générale de Droit International Public

The latest issue of the Revue Générale de Droit International Public (Vol. 113, no. 4, 2009) is out. Contents include:

• Jiri Malenovsky, L’enjeu délicat de l’éventuelle adhésion de l’Union européenne à la convention européenne des droits de l’hommes : de graves différences dans l’application du droit international, notamment général, par les juridictions de Luxembourg et Strasbourg
• Eric David, La Convention de 2008 sur les armes à sous-munitions
• Yangarick Gitton, L'organisation et le système juridique APEC, double modalité de coopération internationale
• Robert Kolb, Observation sur l’évolution du concept de jus cogens
• Shotaro Hamamoto, La procédure de prompte mainlevée préjuge-t-elle le fond de la procédure interne de l’état côtier ? - L'évolution de la jurisprudence du Tribunal International du Droit de la Mer

New Issue: Revue Hellénique de Droit International

The latest issue of the Revue Hellénique de Droit International (Vol. 62, no. 1, 2009) is out. Contents include:

• Henrik Horn & Petros C. Mavroidis, Environment, trade, and the WTO constraint: bop till you drop?
• Stefan Talmon, Security Council treaty action
• Paroula Naskoui-Perraki, The Arab Charter on Human Rights: a new start for the protection of human rights in the Arab World
• Mohammad Shammari, L’évolution des fonctions de la marque et l’élargissement de son role
• Mohammad H. Bashayreh, Lex mercatoria and arbitration agreements: perspectives from Greek and Jordanian law
• Christos S. Chrissanthis, Representative power of insurance intermediaries (agents and brokers) and imputation of their knowledge and fault
• Timoleon Kosmides, Schutz der Persönlichkeit und der Privatsphäre des Einzelnen bei der Verarbeitung kreditwürdigkeitsrelevanter Daten in Griechenland aufgrund des Datenschutzgesetzes
• Athanasia Petropoulou, La CEDH, la Charte de l’ONU et ses rapports nébuleux devant les juridictions internes et internationales

Workshops: Garraway, Van Harten

Charles Garraway (British Red Cross) will give a talk today at the Oxford Public International Law Discussion Group on "The Interpretation of 'Direct Participation in Hostilities.'"

Gus Van Harten (York Univ. - Osgoode Hall Law) will give a talk today at the Vale Columbia Center on Sustainable International Investment International Investment Law and Policy Speaker Series on "Empirical research on arbitrator bias—its relevance and its limitations."

Zacklin: The United Nations Secretariat and the Use of Force in a Unipolar World: Power v. Principle

Ralph Zacklin (formerly, Assistant Secretary-General for Legal Affairs, United Nations) has published The United Nations Secretariat and the Use of Force in a Unipolar World: Power v. Principle (Cambridge Univ. Press 2010). Here's the abstract:

The end of the Cold War appeared to revitalise the Security Council and offered the prospect of restoring the United Nations to its central role in the maintenance of international peace and security. Between the Gulf War of 1990 and the 2003 invasion of Iraq, the UN Secretariat found itself in the midst of an unprecedented period of activity involving authorised and unauthorised actions leading to the use of force. Ralph Zacklin examines the tensions that developed between the Secretariat and member states, particularly the five permanent members of the Security Council, concerning the process and content of the Council’s actions in the Gulf War, Bosnia, Kosovo and the Iraq War as the Secretariat strove to give effect to the fundamental principles of the Charter.

Job Opening: ICJ Clerkships

The International Court of Justice has posted the following vacancy announcement (English/French) pertaining to six clerkship positions:

Vacancy announcement

Date of issuance: 8 February 2010

Deadline for applications: 6 April 2010

Post title: Law Clerk to Judges of the Court (Associate Legal Officer) (6 positions)

Grade: P-2

Vacancy Announcement Number: 2010‑ICJ‑LEG‑01

Duty Station: International Court of Justice, The Hague, Netherlands

Organizational unit: Department of Legal Matters

Indicative minimum net annual remuneration (including post adjustment) based on 1 July 2009 rates:

At single rate: €51,525

At dependency rate: €54,933

Length of Appointment: Two years fixed-term, renewable once for a second two-year period

Background

The International Court of Justice has been allocated six additional P-2 Law Clerk positions by the United Nations General Assembly (A/RES/64/244), making it now possible for each of the Court’s 15 judges to be assigned one full-time Law Clerk.

Functions

Under the supervision of the judge to whom he or she will be specifically assigned, the Law Clerk will provide such judge with legal research and related assistance with regard to cases pending before the Court. The Law Clerk may also be required to provide legal assistance and support to a judge ad hoc participating in a particular case. In coordination with his or her judge, the Law Clerk may also from time to time be called upon to perform some specific legal tasks for the Registry.

Qualifications and skills

• university degree in law, with significant academic background in public international law or professional experience in the field. Graduate and/or post-graduate studies in public international law would be an asset;
• two years’ experience in the settlement of international legal disputes with an international organization, government, law firm or other private sector entity would be desirable.

Languages

French and English are the official and working languages of the Court. Excellent knowledge of and drafting ability in one of these languages is required, as well as a working knowledge of the other. Command of other official languages of the United Nations would be an asset.

Remuneration

Depending on professional background, experience and family situation, a competitive compensation and benefits package is offered. The Court’s salaries are calculated in US dollars but paid in euros. They consist of a basic salary and a post adjustment which reflects the cost of living in the Netherlands and the euro/dollar exchange rate. In addition, the Court offers an attractive benefits package including 30 days of annual leave, home travel every two years, an education grant for dependent children, a pension plan and medical insurance.

Please note that applications received after the deadline will not be accepted

How to apply

Applicants are required to complete a United Nations Personal History Form (P.11), and to submit a cover letter.

All applicants are strongly encouraged to send their application by e‑mail, addressed to the Registrar of the Court, clearly indicating the vacancy announcement number.

E‑mail: recrutement‑recruitment@icj‑cij.org

Fax: +31 70 364 99 28

Only applications from candidates under serious consideration will be acknowledged.

Wood to Deliver Annual Grotius Lecture

Diane P. Wood (Judge, U.S. Court of Appeals for the Seventh Circuit) will deliver the annual Grotius Lecture of the British Institute of International and Comparative Law on March 16, 2010. Her subject will be: "Kingman Brewster's Jurisdictional Rule of Reason, Fifty Years Later."

BIICL: The International Court of Justice and Criminal Justice

Kenneth Keith (Judge, International Court of Justice) will speak today at the British Institute of International and Comparative Law on "The International Court of Justice and Criminal Justice."

Workshops: Klabbers, Muchlinski

Jan Klabbers (Univ. of Helsinki - Law) will give a talk today at the New York University School of Law Institute for International Law and Justice International Legal Theory Colloquium on "Controlling International Bureaucracies."

Peter Muchlinski (SOAS - Law) will give a talk today at the UCL Faculty of Laws and International Law Association (British Branch) International Law Seminar on "Recalibrating International Investment Agreements: Investor Rights, Home State Obligations and the Host State's Right to Regulate."

UPDATE: The Klabbers workshop was postponed to March 11 due to the weather.

New Issue: Melbourne Journal of International Law

The latest issue of the Melbourne Journal of International Law (Vol. 10, no. 2, October 2009) is out. Contents include:

• Symposium: Climate Justice and International Environmental Law: Rethinking the North–South Divide
• Karin Mickelson, Beyond a Politics of the Possible? South–North Relations and Climate Justice
• Jeremy Baskin, The Impossible Necessity of Climate Justice
• Cinnamon Carlarne, Risky Business: The Ups and Downs of Mixing Economics, Security and Climate Change
• Mairon G. Bastos Lima, Biofuel Governance and International Legal Principles: Is It Equitable and Sustainable?
• Angela Williams, Solidarity, Justice and Climate Change Law
• Maxine Burkett, Climate Reparations
• Lee Golden, Death, Desire, Modernity and Redemption: Climate Change and Public International Environmental Law
• Michelle Foster, From Economic Refugees to Climate Refugees? Review of International Refugee Law and Socio-Economic Rights: Refuge from Deprivation
• Lily O'Neill & Göran Sluiter, The Right to Appeal a Judgment of the Extraordinary Chambers in the Courts of Cambodia
• Duncan French & Karen Scott, International Legal Implications of Climate Change for the Polar Regions: Too Much, Too Little, Too Late?
• Vedna Jivan & Christine Forster, Challenging Conventions: In Pursuit of Greater Legislative Compliance with CEDAW in the Pacific

Check out the online symposium discussing this issue beginning tomorrow at Opinio Juris.

New Issue: International Journal of Refugee Law

The latest issue of the International Journal of Refugee Law (Vol. 21, no. 4, December 2009) is out. Contents include:

• Jennifer A. Klinck, Recognizing Socio-Economic Refugees in South Africa: A Principled and Rights-Based Approach to Section 3(b) of the Refugees Act
• James A. Sweeney, Credibility, Proof and Refugee Law
• Jessica Elliott, (Mis)Identification of Victims of Human Trafficking: The Case of R v. O
• Kate Darling, Protection of Stateless Persons in International Asylum and Refugee Law

Onyema: International Commercial Arbitration and the Arbitrator’s Contract

Emilia Onyema (SOAS - Law) has published International Commercial Arbitration and the Arbitrator’s Contract (Routledge 2010). Here's the abstract:

This book examines the formation, nature and effect of the arbitrators’ contract, addressing topics such as the appointment, challenge, removal and duties and rights of arbitrators, disputing parties and arbitration institutions. The arguments made in the book are based on a semi-autonomous theory of the juridical nature of international arbitration and a contractual theory of the legal nature of these relationships. From these premises, the book analyses the formation of the arbitrator’s contract in both ad hoc and institutional references. It also examines the institution’s contract with the disputing parties and its effect on the arbitrator’s contract under institutional references. The book draws from national arbitration laws and institutional rules in various jurisdictions to give a global view of the issues examined in it. The arbitrator’s contract is analysed from a global perspective of arbitral law and practice with insights from various jurisdictions in Africa, Asia, Europe, North and South America.

The primary focus of the book is an analysis of the formation of the arbitrator’s contract and the terms of this contract and the institution’s contract. The primary question of the consequences (if any) of the breaches of the terms of these contracts and its impact on the exclusion or limitation of liability of arbitrators and institutions is also analysed with the conclusion that since these transactions are contractual and the terms can be categorised as in any normal contract, then normal contractual remedies can be applied to the breaches of these terms.

Vale Columbia Center International Investment Law and Policy Speaker Series

Here's the schedule for the Vale Columbia Center on Sustainable International Investment's Spring 2010 International Investment Law and Policy Speaker Series:

• February 11: Gus Van Harten (York Univ. - Osgoode Hall Law), Empirical research on arbitrator bias—its relevance and its limitations
• February 18: Matthew Genasci (Revenue Watch Institute), Alternatives to investment arbitration: contract renegotiation in the natural resource sector
• March 11: André Von Walter (Ministry of Foreign and European Affairs, France), The investor's legitimate expectations - inquiries into the legal nature of an increasingly popular concept
• March 25: Yasmin Shaker, (Department of Foreign Affairs and International Trade, Canada), Damages: does the law matter?
• April 1: Theodore Posner, (Crowell & Moring LLP), Appeals from investor-state awards: an examination of whether and how
• April 8: David Caron (Univ. of California, Berkeley – Law), Investment arbitration and the distinction between appeal and annulment

Kolb: Ius in bello (Second Edition)

Robert Kolb (Univ. of Geneva - Law) has published the second edition of Ius in bello: Le droit international des conflits armés (Helbing Lichtenhahn 2009). Here's the abstract:

Fidèle à son objectif initial, le précis est destiné à permettre aux étudiants d'acquérir les notions de base nécessaires à la compréhension de l'évolution passée et actuelle du droit international public relatif aux conflits armés. Il présente une approche à la fois exhaustive et concise de la matière, tant dans ses aspects théoriques que pratiques. Rédigé dans un langage clair, le précis est illustré de nombreux exemples d'événements passés – lointains ou récents – qui aident à la mémorisation tout en incitant à la réflexion.

La deuxième édition enrichit le précis par des développements actuels à la fois généraux et jurisprudentiels et met à jour les exemples de la première édition. Il approfondit et complète encore certaines notions clés.

New Issue: Nordic Journal of International Law

The latest issue of the Nordic Journal of International Law (Vol. 79, no. 1, 2010) is out. Contents include:

• Gjermund Mathisen, Nordic Cooperation and the European Arrest Warrant: Intra-Nordic Extradition, the Nordic Arrest Warrant and Beyond
• David M. Ong, From 'International' to 'Transnational' Environmental Law? A Legal Assessment of the Contribution of the 'Equator Principles' to International Environmental Law
• Efthymios Papstavridis, 'Fortress Europe' and FRONTEX: Within or Without International Law?
• Fredrik Stenhammar, United Nations Targeted Sanctions, the International Rule of Law and the European Court of Justice's Judgment in Kadi and al-Barakaat
• Inger Österdahl, The Use of Force: Sweden, the Jus ad Bellum and the European Security and Defence Policy
• Peter Pagh, The Enforcement of EC Environmental Law

Workshops: Barnidge, Cheng, Doyle

Robert Barnidge (Univ. of Reading - Law) will give a talk today at the Middle East & Mediterranean Studies Research Group at King’s College London on "The Law of Proportionality and the Israel-Hamas War of 2009."

Tai-Heng Cheng (New York Law School) will give a talk today at Vanderbilt University Law School on "State Succession and Commercial Obligations: An Epilogue and a Prologue."

Michael Doyle (Columbia Univ. - Law) will give a talk today at the Oxford Institute for Ethics, Law and Armed Conflict on "Human Rights, Sovereignty and Military Intervention: A Dialogue with JS Mill."

New Issue: Journal of International Maritime Law

The latest issue of the Journal of International Maritime Law (Vol. 15, no. 4, 2009) is out. Contents include:

• Paul Todd, Piracy for ransom: insurance issues
• Brian Spielman, ‘Warships’ in the North Sea Continental Shelf cases: Why the definition of ‘warship’ for determining sovereign immunity settled 25 years ago

Hamer: The Admissibility of Torture-Obtained Evidence

David A. Hamer (Univ. of Sydney - Law) has posted The Admissibility of Torture-Obtained Evidence. Here's the abstract:

Torture may be a justifiable technique in ticking bomb cases, but these are too improbable to call for a relaxation of the prohibition on torture. Torture is mostly used without justification and the collateral costs of giving it official approval are too great. However, there should be a discretion to admit torture-obtained evidence in criminal prosecutions. Admission need not be taken as expressing approval of torture, and exclusion places too great an obstacle in the path of criminal justice.

Trachtman: International Law and Domestic Political Coalitions: The Grand Theory of Compliance with International Law

Joel P. Trachtman (Tufts Univ. - The Fletcher School) has posted International Law and Domestic Political Coalitions: The Grand Theory of Compliance with International Law. Here's the abstract:

Compliance with international law is always dependent upon a domestic political decision to engage in the behavior that constitutes compliance. This article articulates the importance of the interdependence between home state domestic politics and foreign state domestic politics in determining compliance. International legal commitments allow the formation of domestic coalitions between those who will benefit by their own state’s compliance with the international legal rule in question, and those who will benefit from other states’ compliance with the international legal rule. The theory developed in this paper is based on established approaches to international relations in the political science literature, in particular the “liberal” theory of international relations associated with Andrew Moravcsik, the two-level game theory approach associated with Robert Putnam, and the “second image reversed” approach associated with Peter Gourevitch. The two extensions of these approaches made in this article, (i) from international relations more broadly to international law, and (ii) from adherence to compliance, raise some questions, and bear some important fruit. These extensions help to illuminate the problem of compliance. This article extends the rationalist approach to compliance with international law into the domestic politics of the target state. The model advanced in this article allows the formalization and contextualization of a variety of factors that have heretofore been viewed alone as explanatory variables in the decision to comply. Policy makers can use this model as an analytical template by which to assess whether their counterparties would comply with any undertakings they may make.

New Volume: Polish Yearbook of International Law

The latest volume of the Polish Yearbook of International Law (Vol. 28, 2006-2008) is out. Contents include:

• Natalia Buchowska, The issue of nullity of law making resolutions of international organizations
• Piotr Milik, The Launch of the jurisdiction of the International Criminal Court initiated by the UN Security Council
• Pawel Grzegorczyk, The Effect of the Judgments of the European Court of Human Rights in the Domestic Legal Order
• Karolina Wierczyńska, The Evolution of the notion genocide in the context of the jurisdiction of the national courts
• Daniel Šmihula, Rights of Persons belonging to National Minorities in International Law
• Pavel Svoboda, Economic support to terrorism in the EU case-law
• Izabela Gawłowicz & Piotr Łaski, Russian-German North Gas Pipeline in View of Public International Law
• Grzegorz Domański & Marek Świątkowski, Protection of investor's contractual rights under bilateral and multilateral investment treaties
• Łukasz Gruszczyński, EC Incentive Arrangements for Sustainable Development and Good Governance (GSP Plus) and WTO law. Critical Analysis

Estreicher: Opting Out of Customary International Law? Some Cautionary Notes

Samuel Estreicher (New York Univ. - Law) has posted Opting Out of Customary International Law? Some Cautionary Notes. Here's the abstract:

Duke law professors Curtis Bradley and Mitu Gulati (B&G) have written a very interesting, original paper questioning the conventional view of the binding effect of customary international law (CIL) - that once a customary rule becomes law by the dint of the widespread practice of states in the belief they are legally required to do so (termed opinio juris) it is binding on all states, with the possible exception of those who persistently objected to the rule during its formative stages. B&G maintain this “Mandatory View” of CIL is an ill-conceived twentieth century alteration of a previously established “Default View” of CIL that would allow states to withdraw from customary rules to which they object even if their objections are voiced after the rule has acquired the status of customary law. As they see it, the Default View does a better job of accommodating legal change than does the conventional position.

CIL is a profoundly stable institution, not because it has been able to address the serious analytical challenges academics and others have leveled but because of the advantages it provides its principal players: states (including their personnel and lawyers), international tribunals, and publicists/ academics. Most often interstate disputes are resolved by might called be called the application of prudence or comity; there is normally little point in acting unreasonably with respect to other states if you will need those states to recognize your similar claims. After a settled practice has emerged, publicists or the International Law Commission then may attempt a formal recitation of the practice. This strong dimension of reciprocity explains the development of, say, diplomatic immunity law and customary rules on the recognition of foreign judgments in domestic tribunals. For other matters, either the prospect of reciprocity may be less important or changes in relative power or stage of development among states may provoke change in customary practices. For such disputes, CIL provides a currency for negotiating differences that avoids language of self-interest, does not require use of force, and does not bind anyone, unless states have agreed by ex ante or post clause to refer the dispute to the International Court of Justice (ICJ) or other arbitral mechanism. For weak states - i.e., those that lack the means to use self-help measures to enforce their expectations of appropriate behavior by other states, such as seizure of fishing boats nearing waters they claim - CIL provides a means of saving face and registering objections short of force. For strong states - i.e., those that can use self-help - CIL provides a means of signaling the intensity of their claim initially without declaring resort to self-help or other force.

For these and other reasons developed in the paper, in the end, the system is better off with vigilant insistence on the conventional requirements for CIL formation - widespread practice and opinion juris - and the conventional consequences for the formation of customary rules - you are bound until by your practice and the practice of other states the customary rule gives way to a new custom.

BIICL: Time to Review the Arbitration Act 1996?

Phillip Capper (White and Case LLP), Louis Flannery (Stephenson Harwood), Julian D.M. Lew (20 Essex Street), Alan Refern (One Essex Street), Lord Justice Rix (Royal Courts of Justice), and Stewart Shackleton (Eversheds LLP) will speak today at the British Institute of International and Comparative Law on "Time to Review the Arbitration Act 1996? 13th Annual Review of the Arbitration Act 1996."

Workshop: Howse

Robert Howse (New York Univ. - Law) will give a talk today at the NYU Investment Law Forum on "Custom in International Investment Law: Glamis Gold and other developments."

New Issue: Indian Journal of International Law

The latest issue of the Indian Journal of International Law (Vol. 49, no. 2, April-June 2009) is out. Contents include:

• Ximena Hinrichs Oyarce, Troubled Waters between Chile and Peru: Early Reflections on a Maritime Boundary Claim
• Kishore Singh, Non-Discrimination and Equality of Opportunity in Education and UNESCO's Convention against Discrimination in Education: Recent Developments in International Law, with Reference to India
• Anwar Sadat, Strengths and Limitations of the Kyoto Protocol: Compliance Mechanisms
• Nidhi Gupta, Enforcement of Foreign Awards under the Arbitration and Conciliation Act, 1996: A Review of the Supreme Court Judgment in Venture Global Engineering case