The Status of Forces Agreement (SOFA) between the U.S. and Iraq entered force on January 1, 2009 and established the legal framework by which U.S. personnel continue to operate in Iraq. The SOFA followed lengthy and contentious negotiations, which many commentators claim that Iraq “won,” extracting significant concessions from the U.S. in the process. While that may true in some areas, the opposite seems to be the case in one of the most contentious areas of this or any SOFA – criminal jurisdiction over service members. This article examines the criminal jurisdiction article of the Iraq SOFA and posits that the purported grant to Iraq of primary jurisdiction over U.S. service members is illusory if not an outright nullity.
Lost amidst politically charged issues like troop withdrawal dates and contractor impunity, the SOFA departs from long standing U.S. practice of a jurisdictional framework based on whether there is a nexus between a service member’s acts or omissions and their official duties. Instead, the Iraq SOFA utilizes a jurisdictional construct predicated on U.S. service member duty status. Thus, while the SOFA purports to grant Iraq the primary right of jurisdiction over U.S. service members in certain circumstances, the grant is limited to crimes committed outside duty status. But U.S. service members, even those committing crimes, always have a duty status so the required predicate for Iraq to exercise jurisdiction will never be met. In the years following the U.S invasion of Iraq, U.S. service members have committed a number of serious and high profile crimes against Iraqis, including rape and murder. Prior to the SOFA, Iraq did not have primary jurisdiction over the U.S. service members who committed such crimes. After the SOFA, and seemingly in direct contradiction to lofty SOFA language about Iraq’s sovereign right to enforce its own criminal law, Iraq still lacks primary jurisdiction over U.S. service members, even for rape and murder of Iraqis.
The article concludes that with U.S. troops scheduled to be in Iraq until at least the end of 2011, the likelihood of a U.S. service member committing a violent crime against Iraqis, and bringing much attention to the duty status jurisdictional construct in the process, is high. In the short term, this will almost inevitably create difficulties for the U.S. in its relationship with Iraq. In the long term, the U.S. may have protected its service members from an Iraqi judicial system perceived as not capable of providing due process and a fair trial but the linguistic mechanism for accomplishing that will make future security agreement negotiations with other countries that much more difficult.
Saturday, July 3, 2010
Jenks: A Sense of Duty: The Illusory Criminal Jurisdiction of the U.S./Iraq Status of Forces Agreement
Friday, July 2, 2010
- James Scott, Developing countries in the ITO and GATT negotiations
- Thomas A. Hemphill & Francine Cullari, Terror-free investment index screens: Corporate governance implications for non-US multinational enterprises
- Dilip K. Das, Another perspective on globalization
- Christopher E.S. Warburton, International trade law and trade theory
- Paul Gordon Dickinson, Foreign SMEs and land acquisition the reality of regulation (the case of Estonia)
- Azmat Gani, Distance is a friction to Pacific Island countries' trade with the USA
This is a chapter from our forthcoming book, 'Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism', (MIT Press, September 2010). This chapter addresses the legal, ethical, and strategic aspects of targeted killings as a counterterrorism measure, drawing on the American and Israeli experience. We argue that since terrorism is neither a traditional war nor a traditional crime, its non-traditional nature must affect how, where, and when we employ targeted killings. Specifically, we argue that whether one begins with a law enforcement model or a war model in mind, the ultimate contours of justifiable targeted killings are very similar under either paradigm.
- Carys J. Craig, Digital Locks and the Fate of Fair Dealing in Canada: In Pursuit of "Prescriptive Parallelism"
- Jerry I.-H. Hsiao, Patent Policy for Human Embryonic Stem Cell Research in Taiwan
- Chidi Oguamanam, Patents and Pharmaceutical R&D: Consolidating Private–Public Partnership Approach to Global Public Health Crises
- Mainak Mazumdar & Meenakshi Rajeev, Product Patent, the Problem of Availability of Patented Drugs and Parallel Trade: A Theoretical Approach
Fitzmaurice, Elias, & Merkouris: Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on
Interpretation has always had a prominent place in international adjudication, yet its role has been further enhanced during the last few decades with the expansion of the regulatory range of international law and the proliferation of international judicial bodies. In such a diverse new world and celebrating the 30 years since the entry into force of the VCLT, this Volume on Treaty Interpretation attempts a much needed re-examination of the issues of treaty interpretation.
In the first part of this Volume the authors focus on the VCLT itself and examine the nature of interpretation and the normative content of the relevant provisions. In the second and third parts of the Volume the analysis turns to the characteristics of treaty interpretation as applied within two of the most important sectors of international law i.e. that of trade and investment law on the one hand and of human rights on the other. Such a two-tiered approach allows for a more comprehensive understanding of the content and function of the principles of interpretation as enshrined in Articles 31-33 of the VCLT.
Under the auspices of the Japan Chapter of the Asian Society of International Law, the research project team on “International Law in a Multi-polar & Multi-civilizational World: Asian Perspectives, Challenges & Contributions” (represented by Professor ONUMA Yasuaki, Meiji University) will organize an international symposium focused on the possible roles of Asian States/Peoples in the formation, modification and enforcement of the international legal order in the context of the globalizing world. The keynote speakers are His Excellency Volker STANZEL (German Ambassador to China (2004-07) and Japan (2009-)), Professor JIA Bingbing (Tsinghua University in Beijing, China) and Professor Balakrishnan RAJAGOPAL (the MIT in Boston, originally from India).
Thursday, July 1, 2010
The creation within the World Trade Organisation (WTO) framework of an obligatory dispute settlement mechanism whose rulings are binding has modified the entire international economic structure. The WTO has become a centre of attraction not only for the settlement of disputes strictly related to trade but also problems between governments concerning matters including those of non-economic dimensions. No other international court is available for the effective settlement of such disputes and the WTO tends to attract legal issues which are located, by their nature, at the periphery of trade-related issues. This chapter explains how the DSB addresses non-trade issues in its decisions (Chapter in French).
This short essay, published as part of the proceedings of the 104th Annual Meeting of the American Society of International Law, confronts the problem of fragmentation in international law. Based on a longer paper, it challenges not only fragmentation’s conventional treatment as a technical or doctrinal problem but the very notion that there is a single international law community with a single doctrine of sources. On the contrary, the paper argues, what the problem of fragmentation reveals is that a single international law community is being replaced by separate, overlapping legal communities with significantly different views on law and legitimacy.
This chapter, written to honor Professor Krešimir Sajko of the University of Zagreb, considers the question of personal jurisdiction in U.S. courts at the stage of submission of a foreign judgment for recognition. Existing cases dealing with both recognition of foreign judgments and with the recognition of foreign arbitral awards under the New York Convention fail to provide a clear position on (1) whether either personal jurisdiction or quasi in rem jurisdiction through the presence of the judgment/award debtor’s assets is required, and (2) if quasi in rem jurisdiction is relied upon, just what allegation or proof of the presence of the judgment/award debtor’s assets within the jurisdiction is necessary. The analysis here ends with the conclusion that due process for purposes of recognition jurisdiction may be satisfied based on concepts of consent that are fundamental to the operation of both the New York Convention and the 2005 Hague Convention on Choice of Court Agreements. Such a result would place the United States in a position consistent with its future treaty partners under the Hague Convention on the matter of recognition jurisdiction.
de la Rasilla del Moral: Review Essay—Remarks on Post-Sovereignty and International Legal Neo-Conservatism
It would be far too easy for a jurist educated in Europe to mount a case against these two successive books by Jeremy Rabkin, professor of Government at Cornell University, and to dismiss the whole as a crystal-clear example of the application of a far-rightist American nationalist approach to international law. It would suffice to cobble together some of the numerous bold quotations that abound in both works to dispatch the author as just another neo-conservative scholarly pamphleteer sprung from the always suspicious American Enterprise Institute. However, to gut the beast merely to quench a scholarly readership’s avid thirst for neo-conservative blood, or otherwise become trapped into voyeuristic complicity, would require this reviewer to act as an intellectual butcher [sic] while contributing to a (false?) sense of certitude on other perspectives of international law.
Zimmermann: Congress Continues to Attack Currency Manipulation as China Defuses G-20 Pressure for Now: The International Law Issues
Wednesday, June 30, 2010
Human rights activists frequently claim that human rights are indivisible, and the United Nations has declared the indivisibility, interdependency, and interrelatedness of these rights to be beyond dispute. Yet in practice a significant divide remains between the two grand categories of human rights: civil and political rights, on the one hand, and economic, social, and cultural rights on the other. To date, few scholars have critically examined how the notion of indivisibility has shaped the complex relationship between these two sets of rights.
In Indivisible Human Rights, Daniel J. Whelan offers a carefully crafted account of the rhetoric of indivisibility. Whelan traces the political and historical development of the concept, which originated in the contentious debates surrounding the translation of the Universal Declaration of Human Rights into binding treaty law as two separate Covenants on Human Rights. In the 1960s and 1970s, Whelan demonstrates, postcolonial states employed a revisionist rhetoric of indivisibility to elevate economic and social rights over civil and political rights, eventually resulting in the declaration of a right to development. By the 1990s, the rhetoric of indivisibility had shifted to emphasize restoration of the fundamental unity of human rights and reaffirm the obligation of states to uphold both major human rights categories—thus opening the door to charges of violations resulting from underdevelopment and poverty.
As Indivisible Human Rights illustrates, the rhetoric of indivisibility has frequently been used to further political ends that have little to do with promoting the rights of the individual. Drawing on scores of original documents, many of them long forgotten, Whelan lets the players in this drama speak for themselves, revealing the conflicts and compromises behind a half century of human rights discourse. Indivisible Human Rights will be welcomed by scholars and practitioners seeking a deeper understanding of the complexities surrounding the realization of human rights.
- Luke Nottage & Richard Garnett, Top 20 Things to Change in or Around Australia's International Arbitration Act
- Zhu Weidong, Determining the Validity of Arbitration Agreements in China: Towards a New Approach
- Byung Chol Yoon and Brian C Oh, The Standards for Refusing to Enforce an Arbitral Award on Public Policy Grounds: A Korean Case Study
- Gabriël Moens & Sam Luttrell, Interim Measures of Protection under the Arbitration Rules of the Australian Centre for International Commercial Arbitration
- Chan Leng Sun, International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions
Kammerhofer: Law-Making by Scholarship? The Dark Side of 21st Century International Legal 'Methodology'
The post-Cold War developments in legal scholarship have brought about a weakening of more strictly legal(ist) readings of law and a strengthening of substantialist, political readings. The proponents of these methodologies subconsciously actualise a radical claim: legal scholarship is seen as making international law. It will be argued in this paper that at the basis of this claim to law-making by scholarship lies a fundamental, deep-seated and fatal methodological confusion.
In such new research areas as ‘international constitutionalism’ - but not only there - we find established a mix of international relations, legal and moralist methodologies. It is to be doubted whether such approaches can lead to greater knowledge about the law. The ‘brave new world’ of the post-Cold war years and the new-found confidence of international lawyers in the power of their words have a dark side.
This paper will develop its argument in three steps. First, recent approaches will be introduced as a ‘phenomenology of methodological confusion’. Second, we will use the doctrine of ‘systemic integration’ as a case study. Systemic integration is law-making by those not empowered by the law to make the law. This modus operandi will be contrasted with an ethos of scholarship as trying to find our object of cognition and to present an alternative vision of what international legal scholarship can validly be about.
- Tsai-Yu Lin, The Forgotten Role of WHO/IHR in Trade Responses to 2009 A/H1N1 Influenza Outbreak
- John S. Odell, Negotiating from Weakness in International Trade Relations
- Xinhua Gu & Li Sheng, A Sensible Policy Tool for Pareto Improvement: Capital Controls
- Irina Kireeva & Robert Black, International Trade and Plant Protection Issues: Example of Plant Quarantine Law of the Russian Federation
- Roberto Soprano, Doha Reform of WTO Export Credit Provisions in the SCM Agreement: The Perspective of Developing Countries
- Henry Gao, Taking Justice into Your Own Hand: The TBI Mechanism in China
- Rogério de Souza Farias, Sowing the Seeds of Leadership: Brazil and the Agricultural Trade Negotiations of the Uruguay Round
- Hakim Ben Hammouda & Patrick N. Osakwe, Financing Development in Africa: Trends, Issues, and Challenges in the Context of the Aid for Trade Initiative
Tuesday, June 29, 2010
- Philipp Ritz, Privacy and Confidentiality Obligation on Parties in Arbitration under Swiss Law
- Patrick Dumberry, Compensation for Moral Damages in Investor-State Arbitration Disputes
- Kyriaki Noussia, Punitive Damages in Arbitration: Panacea or Curse?
- Patricia Nacimiento & Alexey Barnashov, Recognition and Enforcement of Arbitral Awards in Russia
- Antonio Rigozzi & Elisabeth Leimbacher, The Swiss Supreme Court Refits the Frigates
- Fabien Gélinas, Peeking Through the Form of Uniform Law: International Arbitration Practice and Legal Harmonization
- Filip De Ly, Mark Friedman, et al., Introduction to the International Law Association International Commercial Arbitration Committee's Report and Recommendations on ‘Ascertaining the Contents of the Applicable Law in International Commercial Arbitration’
- Filip De Ly, Mark Friedman, et al., International Law Association International Commercial Arbitration Committee's Report and Recommendations on ‘Ascertaining the Contents of the Applicable Law in International Commercial Arbitration’
- Nicolas Ulmer, The Cost Conundrum
- Alok N. Jain, Yet Another Misad-Venture by Indian Courts in the Satyam Judgment?
- Edouard Fortunet, Arbitrability of Intellectual Property Disputes in France
- Lanfang Fei, Public Policy as a Bar to Enforcement of International Arbitral Awards: A Review of the Chinese Approach
- Marcus Klamert, Of Empty Glasses and Double Burdens: Approaches to Regulating the Services Market à propos the Implementation of the Services Directive
- Sara Poli, Continuity and Change in the EU Regulatory Framework on GMOs, after the WTO Dispute on 'Biotech Products'
- Arunabha Ghosh, Developing countries in the WTO Trade Policy Review Mechanism
- Emanuela Ceva & Andrea Fracasso, Seeking mutual understanding: a discourse-theoretical analysis of the WTO Dispute Settlement System
- Joanne Gowa, Alliances, market power, and postwar trade: explaining the GATT/WTO
- Bernard Hoekman, Will Martin, & Aaditya Mattoo, Conclude Doha: it matters!
Monday, June 28, 2010
- Mazower, Mark, "No Enchanted Palace. The End of Empire and the Ideological Origins of the United Nations" - Reviewer: Klabbers, Jan
- Grant, Thomas D., "Admission to the United Nations" - Reviewer: Brugère, Anne-Laurence
- Boothby, William, "Weapons and the Law of Armed Conflict" - Reviewer: Heilmann, Daniel
- Rubio-Marin, "The Gender of Reparations Unsettling Sexual Hierarchies While Redressing Human Rights Violations " - Reviewer: Sriram, Chandra Lekha
- Hindelang, Steffen, "The Free Movement of Capital and Foreign Direct Investment" - Reviewer: Losada Fraga, Fernando
- Calnan, Scott, "The Effectiveness of Domestic Human Rights NGOs: A Comparative Study" - Reviewer: Heinz, Wolfgang S.
- Jaïr van der Lijn, Learning Lessons in African Peace Operations
- Cedric de Coning, The Evolution of Peace Operations in Africa: Trajectories and Trends
- Jaïr van der Lijn, Success and Failure of UN Peacekeeping Operations: UNMIS in Sudan
- Jon Harald Sande Lie & Benjamin de Carvalho, Between Culture and Concept: The Protection of Civilians in Sudan (UNMIS)
- Karoline R. Eckroth, Humanitarian Principles and Protection Dilemmas: Addressing the Security Situation of Aid Workers in Darfur
- Gérard Prunier, Rwanda and Darfur: A Comparative Approach to Two Peacekeeping Failures
- Sabine Hassler, Peacekeeping and the Responsibility to Protect
- Claire Morris, Peacekeeping and the Sexual Exploitation of Women and Girls in Post-Conflict Societies: A Serious Enigma to Establishing the Rule of Law
- Special Issue: Papers from the International Conference on Applied Economics (ICOAE 2009)
- Ewa Baranowska-Prokop, Direct offsets in international trade as a remedy for asymmetric information
- Nathapornpan Uttama, Do the third-country effect and economic integration matter for Intra-ASEAN FDI?
- Faiz M. Shaikh, Analysis of bilateral trade liberalization and South Asian Free Trade Agreement (SAFTA) on Pakistan's economy by using CGE model
- John E. Velentzas, Kyriaki K. Savvidou, & Georgia K. Broni, Economic analysis of environmental law: pollution control and nuisance law
- Sittiphol Viboonthanakul, Smuggling via e-commerce: effect on tax revenue
- Weifeng Zhou & Ludo Cuyvers, Determinants of EU antidumping actions against East Asian countries
- Khalid Koser, Introduction: International Migration and Global Governance
- Global Insights
- Bimal Ghosh, The Global Financial and Economic Crisis and Migration Governance
- Sergio March, Global Governance: Migration's Next Frontier
- Kathleen Newland, The Governance of International Migration: Mechanisms, Processes, and Institutions
- Jérôme Elie, The Historical Roots of Cooperation Between the UN High Commissioner for Refugees and the International Organization for Migration
- Alexander Betts, Survival Migration: A New Protection Network
- Susan Kneebone, The Governance of Labor Migration in Southeast Asia
- Susan Martin, Climate Change, Migration, and Governance
- Review Essay
- Alan Gamlen, The New Migration and Development Optimism: A Review of the 2009 Human Development Report
Sunday, June 27, 2010
Trachtman: The International Law of Financial Crisis: Spillovers, Subsidiarity, Fragmentation, and Cooperation
This article develops an analytical template for examining the future of international financial crisis avoidance and management, focusing on certain areas of prudential financial regulation. This template examines questions of national regulatory policy reform, reasons for international cooperation, and problems of cross-functional fragmentation. In order for each state to reduce risk through regulatory reform, states must work together to avoid cross-border harms that are not fully taken into account in national decision-making, and to avoid detrimental regulatory competition. They must work together to make rules, but they must recognize that our vision of the future is limited, and so they must establish institutions that will allow them to revise rules, and institutions, as necessitated by unfolding change.