The latest issue of the American Journal of International Law (Vol. 104, no. 2, April 2010) is out. Contents include:
Giuseppe Martinico (Sant’Anna School of Advanced Studies & Univ. of Pisa) & Oreste Pollicino (Bocconi Univ. - Law) have published The National Judicial Treatment of the ECHR and EU Laws. A Comparative Constitutional Perspective (Europa Law Publishing 2010). The table of contents is available here. Here's the abstract:Do national judges start treating the provisions of the European Convention on Human Rights the same way they treat the EC law’s norms? In order to answer this question the editors (Giuseppe Martinico and Oreste Pollicino) involved scholars from the countries that are members both of the EU and the Council of Europe. The book collects the proceeding of an international conference at the Scuola Superiore Sant’Anna of Pisa (16-17 January 2010).
Jörg Kammerhofer (Friedrich-Alexander-Universität Erlangen-Nürnberg - Law) has published Uncertainty in International Law: A Kelsenian Perspective (Routledge 2010). Here's the abstract:Re-engaging with the Pure Theory of Law developed by Hans Kelsen and the other members of the Viennese School of Jurisprudence, this book looks at the causes and manifestations of uncertainty in international law. It considers both epistemological uncertainty as to whether we can accurately perceive norms in international law, and ontological problems which occur inter alia where two or more norms conflict. The book looks at these issues of uncertainty in relation to the foundational doctrines of public international law, including the law of self-defence under the United Nations Charter, customary international law, and the interpretation of treaties.
In viewing international law through the lens of Kelsen’s theory Jörg Kammerhofer demonstrates the importance of the theoretical dimension for the study of international law and offers a critique of the recent trend towards pragmatism and eclecticism in international legal scholarship. The unique aspect of the monograph is that it is the only book to apply the Pure Theory of Law as theoretical approach to international law, rather than simply being a piece of intellectual history describing it.
This paper explores the mainstream discourse on unity/fragmentation in international law. It seeks to demonstrate that a number of 'fragmentation' concepts and issues are poorly theorized, if at all, and that this generates discussions that may, as a result, be essentially mistaken. It does that by critically addressing one of the many controlling assumptions that presently structure the fragmentation debate. At stake in this paper, in particular, is the one-dimensional representation of fragmentation as pertaining only to substantive unity, that is, to issues of overlapping and possibly contradictory legal norms, regimes or judicial decisions. Against this equation, this paper argues that unity is an elusive and multifaceted concept. Unity comes (and goes) in many different forms and at many different levels, none of which is logically more compelling or self-evident than another. Accordingly, any discourse on fragmentation is inevitably contingent. It presupposes the choice of a particular narrative perspective on unity and ultimately reflects certain preferences regarding the nature and function of international law. To address fragmentation solely as a substantive/technical problem is therefore problematic in at least two respects. For one thing, it ignores alternative narratives about the identity and unity of international law and fails to appreciate that to each form of unity corresponds a special form of fragmentation, as well as specific challenges and solutions. For another, and more fundamentally, it overlooks the ‘politics’ of fragmentation, i.e. the fact that behind the seemingly neutral discourse on conflict of norms lies a Bourdieusian ‘classification struggle’ (lutte de classement), in which efforts by the dominant agents of the international legal fi eld to control and impose certain cognitive criteria, symbolic hierarchies and interpretive procedures as objective (or official) necessities are pitted against the attempts of emerging actors to transform these structures of vision and division.
Mary Ann Palma (Univ. of Wollongong - Australian National Centre for Ocean Resources and Security), Martin Tsamenyi (Univ. of Wollongong - Australian National Centre for Ocean Resources and Security), & William Edeson (Univ. of Wollongong - Australian National Centre for Ocean Resources and Security) have published Promoting Sustainable Fisheries: The International Legal and Policy Framework to Combat Illegal, Unreported and Unregulated Fishing (Martinus Nijhoff Publishers 2010). Here's the abstract:Illegal, unreported and unregulated fishing, or IUU fishing, is considered one of the most significant threats to the sustainability of fisheries resources. Since the adoption of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU), States and regional fisheries management organisations have made sustained efforts to address the problem. This book analyses the concept of IUU fishing and the international instruments which provide the legal and policy framework to combat IUU fishing. The book also examines the range of measures adopted by States and regional organisations to address IUU fishing. These measures include flag State, coastal State, port State, and market State measures.
Bharat H. Desai (Jawaharlal Nehru Univ. - Law) has published Multilateral Environmental Agreements: Legal Status of the Secretariats (Cambridge Univ. Press 2010). Here's the abstract:The present study seeks to examine the genesis, development, and proliferation of multilateral environmental agreements (MEAs) - in-built law-making mechanisms and processes of institutionalization - and their ad hoc treaty-based status and the issue of the legal personality of their secretariats. It provides legal understanding of the location of MEA secretariats within an existing international host institution, as well as discussion of the issue of relationship agreements and interpretation of the commonly used language that triggers such relationships. It places under scrutiny the standard MEA phrase 'providing a secretariat', delegation of authority by the host institution to the head of the convention secretariat, possible conflict areas, host country agreement, and the workings of the relationship agreements. The book offers an authoritative account of the growing phenomenon in which an existing international institution provides a servicing base for MEA that, in turn, triggers a chain of legal implications involving the secretariat, the host institution, and the host country.
Ruth Mackenzie (Univ. of Westminster - Law), Kate Malleson (Queen Mary, Univ. of London - Law), Penny Martin (Univ. College London - Centre for International Courts and Tribunals), & Philippe Sands (Univ. College London - Law) have published Selecting International Judges: Principle, Process, and Politics (Oxford Univ. Press 2010). Here's the abstract:This book examines the way international court judges are chosen. Focusing principally on the judicial selection procedures of the International Court of Justice and International Criminal Court, it provides the first detailed examination of how the selection process works in practice at national and international levels: what factors determine whether a state will nominate a candidate? How is a candidate identified? What factors influence success or failure? What are the respective roles of merit, politics, and other considerations in the nomination and election process?
The research was based on interviews, case studies and survey data in a range of different states. It concludes that although the nature and quality of nomination and election processes vary widely, a common theme indicates the powerful influence of domestic and international political considerations, and the significant role of a small group of diplomats, civil servants, lawyers, and academics, often without transparency or accountability. The processes allow overt political considerations to be introduced throughout the decision-making process in ways that may detract from the selection of the most highly qualified candidates and, ultimately, undermine independence. This is particularly evident in the election campaigning that has become a defining feature of the selection process, accompanied by widespread vote trading and reciprocal agreements between states. The effect of these practices is often to undermine the role of statutory selection criteria and to favour candidates from more politically powerful states. The book reviews new judicial selection models adopted or proposed in other international and regional courts, and considers a number of proposals for change to promote more independent, transparent, and merit-based nomination and election procedures.
Emmanuel Gaillard (Univ. of Paris XII - Law) has published Legal Theory of International Arbitration (Martinus Nijhoff Publishers 2010). Here's the abstract:International arbitration readily lends itself to a legal theory analysis. The fundamentally philosophical notions of autonomy and freedom are at the heart of its field of study. Similarly essential are the questions of legitimacy raised by the parties’ freedom to favor a private form of dispute resolution over national courts, to choose their judges, to tailor the procedure and to choose the applicable rules of law, and by the arbitrators’ freedom to determine their own jurisdiction, to shape the conduct of the proceedings and to choose the rules applicable to the dispute.
The present work, based on a Course given at The Hague Academy of International Law in the Summer 2007, identifies the philosophical postulates that underlie this field of study and shows their profound coherence and the practical consequences that follow from these postulates in the resolution of international disputes.
Bruce A. Elleman, Andrew Forbes, & David Rosenberg have published Piracy and Maritime Crime: Historical and Modern Case Studies (Naval War College Newport Papers, No. 35). The table of contents is here. Here's the abstract:In this thirty-fifth title in the Newport Papers monograph series, Dr. Elleman, of the Naval War College Maritime History Department, and his coeditors have collected twelve case studies that allow conclusions to be drawn on uses and limitations of naval antipiracy operations in the context of new technology and modern national policy goals.
The latest issue of the International Criminal Law Review (Vol. 10, no. 3, 2010) is out. Contents include:
In our “Westphalian” regime of international arbitration, conflict and competition between national jurisdictions, with overlapping and yet plausible claims to supervise the process, become inevitable. The conventional starting point for any discussion - the fulcrum around which the entire arbitral enterprise pivots - has been the supposed dichotomy between the state of the “seat” - where the arbitration finds its juridical “home,” and whose jurisdiction over the process is therefore “primary” - and all other states whose jurisdiction must therefore be deemed only “secondary.” Both legislation and Convention envisage an exclusive role for the former in setting the process in motion - for example, by appointing the arbitrators - and above all in monitoring compliance with the agreement - for example, by annulling or vacating the resulting award.
That the “seat” is the privileged starting point with respect to any allocation of judicial authority has traditionally been a simple reflection of the power of any sovereign over acts taking place within its “territory”; an alternative and perhaps more robust explanation would be somewhat more “contractualist,” giving priority to the parties’ exercise of autonomy in the very act of selecting the place of arbitration - and to the intuition that, by extension, they have presumptively chosen to subject themselves both to a certain body of “arbitration law,” and to the supervisory jurisdiction of the courts charged with applying that law.
I begin by canvassing the various fact patterns in which the traditional allocation of international competence on the basis of “primary” and “secondary” jurisdiction might possibly be thought useful: It has become, for example, the heuristic of choice to test the extraterritorial effect of an award, in circumstances where the agreement of the parties has subjected the arbitral process to a particular legal system whose own courts have found it lacking in legitimacy. All this is much controverted, but generally well understood.
The inevitable problem, though, is that none of this is a universal solvent - the world can after all be understood and patterned and divided up in all sorts of ways. What may have begun as a rough attempt to allocate responsibility over the unfolding of the process, has often been unthinkingly applied to all sorts of new and unexpected and inappropriate contexts.
Where, for example, a party has asked a court to enjoin an arbitration against him that has been threatened or initiated - perhaps on the fundamental ground that he has never even given his assent - American courts will increasingly hold that, whatever power they might have to enjoin a “local” arbitration, it would be “inconsistent with the purpose of the New York Convention” to enjoin arbitral proceedings in a state of “secondary jurisdiction” - and thus they “lack jurisdiction” to do so. Where a party has claimed that a foreign award has been obtained by bribery and corruption, and wishes to institute a “collateral attack” in this country through a RICO action, it may equally be held that the court lacks “subject matter jurisdiction” to reassess an award rendered in a state of “primary jurisdiction”; “under the framework of the New York Convention, the proper method of obtaining this relief is by moving to set aside or modify the award in a court of primary jurisdiction.”
American courts thus seem curiously mesmerized, when asked to deploy familiar procedural devices in aid of their nationals, by a rhetoric invented for quite different purposes. What purports in cases like these to be a commendable solicitude for the needs of international arbitration, takes the form of an abdication of any decision making power whatever, in favor of the courts of the seat. To invoke a putative lack of “power” based upon absolute prohibitions that supposedly emanate from the Convention seems a crude and clumsy and overbroad and irresponsible way of responding; even a legal system quite committed, for example, to the proposition that attempts to evade the arbitral process are likely to be quite without merit - or for that matter to the proposition that international neutrals cannot possibly be corrupt - need not shrink, on the prophylactic grounds of lack of jurisdiction, from testing any challenges.
The latest issue of Archiv des Völkerrechts (Vol. 48, no. 2, June 2010) is out. Contents include:
The latest issue of the Journal of International Economic Law (Vol. 13, no. 2, June 2010) is out. Contents include:
Since the Nuremberg trials of 1945, the classification of men and women who commit atrocities in time of war has been a subject of bafflement. Attempts to explain this phenomenon have largely relied on various abnormality theories. However, none of these theories hold sway. Instead, the dominant view today is that men and women who commit atrocities are normal. This conclusion has confounded many because it is even harder to rationalize how people who in fact closely resemble us could perpetrate such violent crimes. How had they become evil criminals? The focus on this article is on excuse theory and its value in resolving this issue.
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.
The latest issue of the Journal of International Trade Law and Policy (Vol. 9, no. 1, 2010) is out. Contents include:
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.
The latest issue of the Journal of World Intellectual Property (Vol. 13, no. 4, July 2010) is out. Contents include:
Malgosia Fitzmaurice (Queen Mary, Univ. of London - Law), Olufemi Elias (World Bank Administrative Tribunal), & Panos Merkouris (Queen Mary, Univ. of London - Law) have published Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (Martinus Nijhoff Publishers 2010). Here's the abstract: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).
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.
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.
