This short essay in the Texas Law Review's on-line companion, See Also, responds to Professor Ernest Young's important article, “Treaties as 'Part of Our Law.” Young defends the Roberts Court's recent decisions on the U.S. legal status of treaties and argues that treaties should have roughly the same status as federal statutes. I applaud Young's effort to put treaties and statutes on roughly equal footing, but I take issue with his analysis on several points, including whether federal courts should give some deference to the decisions of foreign courts, the relevance of the specificity or vagueness of human rights treaties to the question whether a treaty is self-executing, the existence of rights of action to enforce treaty provisions, and the reasons why not all treaty provisions are self-executing despite the sweeping language of the supremacy clause. I also suggest that Young's defense of the Roberts Court's decisions requires him to rewrite or re-reason the Court's opinions, and I note that this need to rewrite is something common to defenders of those decisions.
Saturday, May 29, 2010
Friday, May 28, 2010
105th ASIL Annual Meeting Theme Statement
March 23-26, 2011
Harmony and Dissonance in International Law
International law, and the world in which it operates, are increasingly both harmonious and dissonant. The Society’s Annual Meeting in 2011 will focus on the evolution of international law in the context of this paradox.
On the one hand, international law has become segmented, as specialized international institutions and rule-making have proliferated in a variety of issue areas. Another facet of segmentation has been the proliferation of competing and complementary conceptions of international law. Some view the growing body of specialized international legal rules as creating problems in the unity of international law, ultimately undermining the international legal system’s ability to promote peaceful relations among states and other actors. Others view fragmentation as a positive development that reflects the expansion and increased diversity, and hence utility, of international legal norms, particularly in accommodating the diverging interests of international actors.
On the other hand, recent years have witnessed a seemingly opposite trend towards seamlessness, as evidenced by the collapsing of boundaries between public and private international law, between non-state actors and principles of state responsibility, between law and policy, and between the prerogatives of power and the demands of principle. Areas of international law once considered distinct are increasingly—perhaps routinely—borrowing principles, jurisprudence, and practice from one another.
The paradox of simultaneous segmentation and seamlessness raises important questions. Most broadly, when should international law be segmented, and when should it be seamless? What are the mechanisms for deciding this question, and what are the values that inform those decisions? What do these trends say about international law as a coherent system? To what extent are certain groups and their viewpoints excluded or ignored? What does this say about who the influential players within the international legal system are, and how that influence is exercised? What does the existence of competing conceptions of international law itself mean for ASIL’s constituents, including judges deciding international issues, practitioners seeking to persuade courts and craft international policy, and scholars seeking to understand and propose solutions to global problems?
Society members are uniquely positioned to tackle these questions with their diverse perspectives, experiences, and areas of expertise, and their unifying commitment to investigating the limits and possibilities of international law. We look forward to an exciting and dynamic meeting that will examine such trends, and their implications for international law and legal institutions in the 21st century.
Click here to suggest a topic or paper for the Program Committee. The deadline for submissions is Monday, June, 28, 2010.
d'Aspremont: Mapping the Concepts Behind the Contemporary Liberalization of the Use of Force in International Law
The Article starts by investigating the manner in which the prohibition to use force is being incrementally corroded. In particular, it argues that the evanescence of the rule expressed in Article 2(4) of the U.N. Charter does not stem from a conscious disregard for the prohibition on the use force since most States still feel constrained by it. Instead, it is submitted that the disintegration of the prohibition on the use force results from a general striving for looser limitations on that prohibition. This phenomenon is construed here as a liberalization of the use of force. Once it has been established how the prohibition on the use of force is being liberalized, only then this Article engages in a study of its consequences for the international legal order.
The dislocations of the worldwide economic crisis, the necessity of a system of global justice to address crimes against humanity, and the notorious ‘democratic deficit’ of international institutions highlight the need for an innovative and truly global legal system, one that permits humanity to reorder itself according to acknowledged global needs and evolving consciousness. A new global law will constitute, by itself, a genuine legal order and will not be limited to a handful of moral principles that attempt to guide the conduct of the world’s peoples. If the law of nations served the hegemonic interests of Ancient Rome, and international law served those of the European nation-state, then a new global law will contribute to the common good of all humanity and, ideally, to the development of durable world peace. This volume offers a historical-juridical foundation for the development of this new global law.
Thursday, May 27, 2010
- James C. Hathaway, Leveraging Asylum
- Tanya J. Monestier, Personal Jurisdiction over Non-Resident Class Members: Have We Gone Down the Wrong Road?
- Sungjoon Cho, The Demise of Development in the Doha Round Negotiations
- Richard B. Bilder, A Legal Regime for the Mining of Helium-3 on the Moon: U.S. Policy Options
- Won Kidane, The Terrorism Bar to Asylum in Australia, Canada, the United Kingdom, and the United States: Transporting Best Practices
- Milena Sterio, Fighting Piracy in Somalia (and Elsewhere): Why More Is Needed
- Merle H. Weiner, Uprooting Children in the Name of Equality
- Matthew J. Wilson, Japan’s New Criminal Jury Trial System: In Need of More Transparency, More Access, and More Time
- Sergio Duarte, Nuclear Weapons and the Rule of Law
Mixed agreements are one of the most significant and complex areas of EU external relations law. They are concluded by the Member States and the EU (or the European Community in the pre-Lisbon days) with third countries and international organisations. Their negotiation, conclusion and implementation raise important legal and practical questions (about competence, authority, jurisdiction, responsibility) and often puzzle not only experts in countries and organisations with which the EU works but also European experts and students. This book, based on papers presented at a conference organised by the Universities of Leiden and Bristol in May 2008 provides, a comprehensive and up-to-date analysis of the legal and practical problems raised by mixed agreements. In doing so, it brings together the leading international scholars in the area of EU external relations, including two Judges at the European Court of Justice and a Judge at the EFTA Court, along with legal advisors from EU institutions, Member States, and third countries.
Non-governmental organizations, transnational business associations, private standard-setting bodies, public-private partnerships, and institutionalized incentive schemes now occupy a central place in the regulation and governance of transnational economic affairs alongside states and intergovernmental organizations. Much of the literature on these new and emerging patterns of governance has focused on the legal, political, and normative implications of this rapidly evolving landscape. The Handbook of Transnational Economic Governance Regimes expands on this scholarship by identifying, describing, and analysing more than 85 of the most significant actors in transnational governance. The Handbook examines the origins, evolution, structure, membership, financing, and strategies of key organizations and regulatory networks in almost every sphere of global economic activity, and analyses their role and influence in contemporary transnational economic governance.
Wednesday, May 26, 2010
This timely book examines international trade and investment law at various levels of governance, including unilateral, bilateral, regional, and multilateral arrangements.Rafael Leal-Arcas demonstrates that the nature of international trade law is fragmented and cyclical. Whilst not always straightforward, the process of making international trade law more multilateral, beginning with the General Agreement on Tariffs and Trade in 1947, has been largely successful. The author shows how this success could be emulated for international investment law, as well as providing a careful analysis of the choice of jurisdiction – regional versus global – for the settlement of disputes.
This book is a study of the legal aspects of the birth and development of an international organisation, using the example of INTERPOL as a detailed case study. It is not a constitutional manual for INTERPOL, but an organisational study, and does not seek to be exhaustive in terms of its description of INTERPOL's operations. Its main focus is the examination of the question whether an international organisation, in this case INTERPOL, can be created without a solemn and formally celebrated treaty. At the same time the book sets out the legal foundations for extra-judicial international police enforcement cooperation and explains the creation, structure and operation of INTERPOL, the organisation that promotes that cooperation. For practitioners who, for whatever reason, have to deal with INTERPOL, it provides a much-needed explanation of the legal foundations of the Organisation, its legal status and some basic guidance on its operations. It also includes information relevant for lawyers litigating issues with INTERPOL about how their clients can challenge the way the Organisation has processed information concerning them, or has alerted police forces worldwide about them.
- Avinash Sharma & Khyati Trivedi, The Chief Justice's Power to Appoint Arbitrators Under the (Indian) Arbitration and Conciliation Act 1996: a Brief Analysis of Synchronised Judicial Response
- Mavluda Sattorova, Judicial Expropriation or Denial of Justice? A Note on Saipem v Bangladesh
- Tushar Kumar Biswas, The Doctrine of Competence/Competence from Indian Perspectives
- Stewart Shackleton, The High Cost of London as an Arbitration Venue—the Court of Appeal rejects Compétence-Compétence and Separability in Midgulf v Groupe Chimique Tunisien
- Amit M. Sachdeva, Unlimited Jurisdiction of the Indian Courts (to Intervene) in International Arbitrations: an Analysis of the Bhatia International Case
- Nicholas Gaskell, The Bunker Pollution Convention 2001 and limitation of liability
- Alla Pozdnakova, Places of refuge for vessels in the Barents Sea: perspectives of the Norwegian-Russian cooperation
- Rhys Clift, The phenomenon of mediation: judicial perspectives and an eye on the future
Tuesday, May 25, 2010
Weissbrodt & Nesbitt: The Role of the United States Supreme Court in Interpreting and Developing Humanitarian Law
In the absence of a single authoritative mechanism to interpret humanitarian law, a number of treaty bodies, national courts, regional human rights courts/commissions, international tribunals, and thematic mechanisms have been called upon to address humanitarian law issues. Prime among these institutions is the United States Supreme Court. Though only in a small number of cases, the Court has relied on humanitarian law principles and treaties from the early days of the Republic to the “war on terrorism.” In what ways does the Court invoke this body of law and how competent is its analysis? Is the Court institutionally equipped to play a meaningful role in the development of humanitarian law?
This article assesses the historical, current, and potential role of the Court in interpreting and developing humanitarian law. Through a comprehensive examination of the Court’s humanitarian law jurisprudence, the article argues that while the Court has offered useful and precedential interpretations of humanitarian law, its analysis suffers from a relatively superficial engagement with the Geneva Conventions. In short, the Court is reluctant to probe too deeply into this complex body of law; its reliance on humanitarian law is often minimal and sometimes haphazard. Despite these shortcomings, the Court has an important role to play. Throughout its history, but most notably in the years after September 11, 2001, the Court has unearthed numerous substantive propositions of humanitarian law and offered novel interpretations of at least one of them. As national and international courts grapple with the implications of international terrorism, the Court will remain an important voice.
- Marie-Laure Djelic & Sigrid Quack, Transnational communities and governance
- Renate Mayntz, Global structures: markets, organizations, networks – and communities?
- Heidi Dahles, The multiple layers of a transnational 'imagined community': the notion and reality of the ethnic Chinese business community
- Mine Eder & Özlem Öz, From cross-border exchange networks to transnational trading practices? The case of shuttle traders in Laleli, Istanbul
- Charles Harvey & Mairi Maclean, Transnational boards and governance regimes: a Franco-British comparison
- Glenn Morgan & Izumi Kubo, Private equity in Japan: global financial markets and transnational communities
- Asma A. Hussain & Marc J. Ventresca, Formal organizing and transnational communities: evidence from global finance governance associations, 1879–2006
- Carlos Ramirez, Promoting transnational professionalism: forays of the 'Big Firm' accounting community into France
- Anca Metiu, Gift-giving, transnational communities, and skill building in developing countries: the case of free/open source software
- Leonhard Dobusch & Sigrid Quack, Epistemic communities and social movements: transnational dynamics in the case of Creative Commons
- Mark Lawrence Schrad, The transnational temperance community
- Thomas Fetzer, Industrial democracy in the European Community: trade unions as a defensive transnational community, 1968–88
- Dieter Plehwe, The making of a comprehensive transnational discourse community
- Åge Mariussen, Global warming, transnational communities and economic entrepreneurship: the case of carbon capture and storage (CCS)
- Tim Bartley & Shawna N. Smith, Communities of practice as cause and consequence of transnational governance: the evolution of social and environmental certification
- Marie-Laure Djelic & Sigrid Quack, Transnational communities and their impact on the governance of business and economic activity
This paper aims at making a preliminary assessment of China in the WTO dispute settlement system from an international socialization perspective. When China joined the World Trade Organization (WTO) in November 2001, it was not clear how China would behave in WTO dispute settlement. At first, China proved to be a conciliatory defendant and reluctant complainant. Recently however, China’s profile in dispute settlement has shifted to a more proactive one, leading some observers to label its behavior “aggressive.”
I argue that China’s behavior should be viewed in a different light. From totally rejecting international third party adjudication in the past, China - by permitting WTO panels to determine its fate in trade disputes - has started to exhibit new willingness to accept binding international adjudication. In this context, China is demonstrating respect for international rules as well as its faith in western legal norms and institutions. Through more intense participation in WTO dispute settlement, China is also becoming increasingly vested in the maintenance of WTO norms and rules, and consequently, the WTO dispute settlement system is playing an important role in socializing China.
The doctrinal role of a lawfully taken countermeasure is to serve as a defense (or circumstance precluding wrongfulness) which justifies the reacting State’s suspension of its performance of an international obligation owed to the target State. Countermeasures, however, need not be symmetrical. In response to a violation of Treaty A, for example, States may, and often will, react by taking countermeasures suspending performance of obligations under Treaty B. Where both (or one of) Treaty A and Treaty B contains a provision for the compulsory adjudication of disputes, complicated questions of jurisdiction can arise. How, for example, is an asymmetrical countermeasures defense to be treated by an adjudicatory body with limited jurisdiction if the basis of the defense is an allegedly wrongful act under a treaty over which that adjudicatory body has no jurisdiction? Similarly, how is the countermeasures defense to be treated if it is based upon a violation of customary international law?
This article addresses the treatment of asymmetrical countermeasures by adjudicatory bodies of limited jurisdiction, analyzing the scope of discretion accorded to such bodies in the management of their jurisdiction and the impact that jurisdictional limitations may have on State practice with respect to the formulation and use of countermeasures. The analysis here engages the wider academic debate on the fragmentation of international law, although the issues raised are far from academic. Already the effect of jurisdictional limits on adjudicatory bodies to consider defensive pleas of asymmetrical countermeasures has arisen for decision in investor-State disputes and disputes before the World Trade Organization. Such issues likely will continue to arise across the range of fields covered by international law. It is an important issue and one that is due for attention.
Monday, May 24, 2010
- Judith S. Kaye, Junctures: In Life and in Law
- Otto Sandrock, The Choice Between Forum Selection, Mediation and Arbitration Clauses: European Perspectives
- Hans Smit, Delinquent Arbitrators and Arbitration Counsel
- Andrea Marco Steingruber, Sports Arbitration: How the Structure and Other Features of Competitive Sports Affect Consent as It Relates to Waiving Judicial Control
- Tamieka Spencer Bruce, A Choice of Public Law? Resolving the International Arbitrator’s Dilemma
The proposed amended settlement in the Google Book case has been the focus of numerous comments and critiques. This “perspective” reviews the compatibility of the proposed settlement with the TRIPS Agreement and relevant provisions of the Berne Convention that were incorporated into TRIPS, in particular the no-formality rule, the most-favored nation (MFN) clause, national treatment obligations, and the so-called three-step test, which constrains the ability of WTO Members to provide new exceptions and limitations to copyright rights.
- David S. Jonas & Thomas N. Saunders, The Object and Purpose of a Treaty: Three Interpretive Methods
- David Jenkins, Judicial Review Under a British War Powers Act
- Elizabeth R. Sheyn, A Foothold for Real Democracy in Eastern Europe: How Instituting Jury Trials in Ukraine Can Bring About Meaningful Governmental and Juridical Reforms and Can Help Spread These Reforms Across Eastern Europe
- Itzchak Kornfeld, A Global Water Apartheid: From Revelation to Resolution
- Lilian V. Faulhaber, Sovereignty, Integration and Tax Avoidance in the European Union: Striking the Proper Balance
- Mark R. Shulman & Lachmi Singh, China's Implementation of the UN Sales Convention Through Arbitral Tribunals
- Luzius Wildhaber & Steven Greer, Reflections of a Former President of the European Court of Human Rights
- Alison Kesby, Internal Borders and Immigration Control: New Prospects and Challenges
- Cian C. Murphy, The Principle of Legality in Criminal Law under the European Convention on Human Rights
- Nicholas Gibson, Right to Education in Conformity with Philosophical Convictions: Lautsi v Italy
This book examines recent developments in sources of public international law, such as treaties and custom operating among nations in their mutual relations, as well as developments in some of the primary rules of law international institutions created by these processes. It finds that public international law has become increasingly dysfunctional in dealing with some of the primary problems facing the world community, such as the maintenance of international peace and security, violations of international human rights and the law of armed conflict, arms control, disarmament and non-proliferation, and international environmental issues, and that international law and international institutions face a problematic future. It concludes, however, that all is not lost. There are possible alternative futures for international law and legal process, but choosing among them will require the world community making hard choices.
Sunday, May 23, 2010
The article reviews Constitutionalizing Economic Globalization by David Schneiderman. In the book, Schneiderman examines the relationships between international investment rules and constitutional principles of liberal democracy and identifies how arbitrators have interpreted investment treaties in ways that take constitutionalist notions of limited government beyond their domestic trajectories and that promote versions of the ‘rule of law’ with a distinctly neo-liberal bent. Ironically, this portrayal of investment arbitration as an institutional hammer of neo-liberalism that is just now hitting its nails coincides with a resurgent Keynesianism and renewed regulation at the domestic level, making the investment-rules regime’s claims to detachment from politics and government look all the more disingenuous or naïve. My main criticism of the book is that its claim of ‘constitutionalization’ is open to doubt given that (1) the treaties can be abrogated, (2) the treaties lack the normative power of domestic constitutions, and (3) investment arbitration lacks integral components of a liberal constitutional structure including institutional safeguards of judicial independence. Nevertheless, Schneiderman offers powerful insights on the capacity for alternative visions and resistance. It is also refreshing, in an age of too much talk about globalization, to see Schneiderman focus on national governments and their power to undo that which has been done.